vil Appeal Nos
2833 35 of 1987
From the Judgment and Order dated 1991986 of the Calcutta High Court in AFO No 102 of 1984 in MA Nos 3036 and 3062 of 1983
Soli J Sorabjee Attorney General and NS Hegde Additional Solicitor General Gopal Subramanium Ms A Subhashini and P Parmeshwaran for the Appellants
SS Khanduja YP Dhingra and BK Satija for the Respondents
30 The Judgment of the Court was delivered by SABYASACHI MUKHARJI CJ
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
The Indian Independence Act 1947 hereinafter referred to as the Act  was passed by the British Parliament
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 
Two independent dominions were set up in place of the existing Indian Union
Section 31 of the Act pro vided inter alia that as from the appointed day the Prov ince of Bengal as constituted under the Government of India Act 1935 shall cease to exist and in lieu thereof two new provinces known respectively as East Bengal  and West Bengal  shall be constituted under section 33 of the Act
Under section 33 of the Act it was 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
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 ie three days before the appointed day
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
The Award directed that the District of Darjeel ing and so much of the District of Jalpaiguri as lies north 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
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 of Bengal
After the parti tion Berubari Union formed part of the State of West Bengal and had been governed as such
The Constitution of 31 India was declared to be passed on 26th November 1949
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
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
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 comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal
As already pointed out in view of the said award 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
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
However the same had nothing to do with the present case and the question of Berubari Union or the Cooch Behar enclaves or Pakistani enclaves in the east was not the subject matter of the same
But the said question was raised by the Government of Pakistan in the year 1952
Admitted position is that during the whole of this period the Beru bari Union continued to be in the possession of the Indian Union and was governed as part of West Bengal
Near about 1952 Pakistan alleged that under the Award the Berubari Union should really have formed part of East Bengal
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 4 in the First Schedule to the Con stitution
On the 31st December 1949 the States Merger West Bengal Order 1949 was passed
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
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
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
Similarly certain Pakistan enclaves were found in India
Dahagram and Angarpota now Bangladesh were the Pakistani enclaves in India
The Prime Ministers of two countries entered into an agreement settling certain dis putes including the Bernbari Union and the enclaves in 32 the East Pakistan in 1958
Two items in Para 2 of the said Agreement were items 3 and 10
These were as follows Item No 3 Berubari Union No 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
The Division of Berubari Union No 12 will be hori zontal starting from the north east corner of Debiganj Thana
The division should be made in such a manner that the Cooch Behar enclaves between Pachagar Thana of West Bengal will remain connected as at present with Indian territory and will remain with India
The Cooch Behar Enclaves lying 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
 Item NoO Exchange of old Cooch Behar Enclaves in Paki stan and Pakistan Enclaves in India without claim to compen sation for extra area going to Pakistan is agreed to
 Subsequently there was doubt as to whether the imple mentation of the 1958 Agreement relating to Berubari Union and the exchange of Enclaves requires any legislative action either by way of a suitable law of the Parliament relatable to Article 3 of the Constitution or in accordance with the provisions of Article 368 of the Constitution or both
Accordingly in exercise of the powers conferred upon him by clause 1 of Article 143 of the Constitution the President of India referred the following three questions to this Court for consideration 1 Is any legislative action necessary for the imple mentation 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 alterna tive 3 Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agree ment relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution 33 necessary for the purpose in addition or in the alternative This Court answered the questions as follows
So far as question No 1 Was concerned it was answered in affirma tive
So far as second question was concerned this Court answered it by saying that a law of Parliament relatable to article 3 of the Constitution would be incompetent and a law of Parliament relatable to article 368 of the Constitution is competent and necessary and also by saying that 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 Art 368 and then follow it up with a law relatable to the amended article 3 to implement the agreement
Question NO 3 was also answered as aforesaid
The said decision is reported in Re
The Berubari Union and Exchange of Enclaves 250
Ninth Amendment to the Constitution was made thereafter
The Objects and Reasons of the Constitution Ninth Amendment Act 1960 stated that the Indo Pakistan agreements dated September 10 1958 October 23 1959 and January 11 1960 which settled certain boundary disputes relating to the borders of the State of Assam Punjab and West Bengal and the Union Territory of Tripura involved transfer of certain territories to Pakistan after demarcation
The Act amended the Constitution to give effect to the transfer of those territories
After setting out the title of the Act which was called the Constitution Ninth Amendment Act 1960 it provided the definitions and amendments to the First Sched ule to the Constitution
In 1966 writ petitions were filed challenging the validity of the proposed demarcation as also raised the question as to whether the proposed transfer of Berubari Union would result in deprivation of citizenship and property without compensation
The writ petitions were dismissed eventually by this Court
The said decision is reported in Ram Kishore Sen  Ors
vs Union of India  Ors
 1966 1 SCR430
In 1971 a sovereign independent State known as Bangla desh  came into existence which comprised of the territory previously known as East Pakistan or East Bengal
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
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 compensation for the additional area going to Bangladesh
Thereafter an understanding was reached 34 in October 1982 between the two Governments in connection with the lease in perpetuity in terms of item 14 of Arti cle 1 of the 1974 Agreement
In 1983 writ petitions were filed in the Calcutta High Court
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 not involve cession of Indian territory to Bangladesh
The said judgment in Sugandha Roy vs Union of India  Ors is reported in AIR 1983 Cal
at p 483
It was held therein that there being no Gazette 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 no Gazette 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 not come 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 no appointed 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 concerned particu larly the Berubari Union and the enclaves of the Dahagram and Angarpota and as such neither in fact nor in law there was any accession to India in respect of the two enclaves and they remained part of Pakistan now Bangladesh as they were before in spite of 1958 Nehru Noon Agreement and Ninth Amendment
Therefore the implementation of the 1974 and 1982 Agreements which provided inter alia that the two enclaves would not be exchanged would not amount to cession of any Indian territory which would require any Constitu tional amendment
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
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
India and Bangladesh had by the said 1974 and 1982 agreements and to the extent indicated therein terminated andor modified the earlier Treaty of 1958 in respect of inter alia southern portion of Bernbari Union and the two enclaves in question
In such a case even if it could be said that it was the obligation of the Government of India to make endeavour to foster respect for the 1958 treaty as contemplated by Article 5 ic that did not 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 35 southern portion of Berubarl Union and the exchange of enclaves in question was not given effect to any time and the Ninth Amendment to that effect was never brought into force
The Court further held that when by 1974 agreement read with 1982 agreement Bangladesh Government had been given the facility of using the Indian area known as Teen Bigha in the manner contemplated by those agreements to be discussed in detail later the implementation of those two agreements would not involve cession of any territory to Bangladesh in respect of Teen Bigha
Not merely that no exclusive possession of that area was sought to be trans ferred to Bangladesh and no legal possession at all was being transferred
There was no question of transfer of sovereignty wholly or partially in respect of the said area
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 ie Teen Bigha which other wise they would not have been entitled to do
That was being so allowed because instead of exchange of these enclaves along with others as contemplated by 1958 Agreement it was agreed that these two enclaves would remain as part of Bangladesh
The Court further held that it was clear that the reason was that in spite of the 1958 agreement and in spite of the Ninth Amendment which had not been given effect to the southern portion of Berubari Union had to be retained by India
As these two enclaves were to remain as part of Bangladesh territory these two agreements had made some provisions to enable Bangladesh to exercise its sover eignty in full over these two enclaves
This is also clear by 1982 agreement the Court held
Thus the implementation of these two agreements so far as Teen Bigha was concerned did not amount to cession of the said territory or transfer of sovereignty in respect of the same and did not require any constitutional amendment
There was an appeal before the Division Bench of the High Court
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 not dis puted before the Division Bench
The Division Bench in judgment under appeal affirmed the decision of the learned Single Judge
The findings and interpretation of the agree ments of 1974 and 1982 were also not disputed before us
We are also of the opinion that that is the correct position in law and on facts
As mentioned hereinbefore on or about 16th May 1974 an agreement was entered into by and between Government of India and the Government of the People s Republic of Bangla desh
The said agreement was signed by late Smt
Indira Gandhi as the then Prime 36 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 People s Republic of Bangladesh
It was recorded in the preamble of the agreement that the same concerned 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 countries and that it was desired to define the boundary more accurately at certain points and to com plete the demarcation thereof
Items 12 and 14 of Article 1 of the Agreement relevant to the proceedings before us as mentioned before were as follows Item No 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 compensation for the additional area going to Bangladesh
 Item No 14 India will retain the southern half of south Berubari Union No 12 and the adjacent enclaves measuring an area 264 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 connect Dhagram with Panbari Mouza section Patram of Bangladesh
 Article 5 provided that the agreement shall be subject to notification by the Government of India and Bangladesh and Instruments of rectification shall be exchanged as early as possible
It may however be stated as was noted by the Division Bench of the Calcutta High Court that the agreement dated 11th May 1974 was also not implemented
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 concerning the demarcation of land boundary between the two countries signed on the 16th May 1974 the following understanding 37 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 connect Dahagram with Mouza Panbari in Bangladesh
The understanding recorded was as follows Clause 1 The lease in perpetuity of the aforementioned area shall be for the purpose of connecting Dahagram and Angarpota with Panbari Mouza PS Patgram of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota
 Clause 2 Sovereignty over the leased area shall continue to vest in India
The rent for the lease area shall be Bangladesh Re 1 Bangladesh Taka one only per annum
Bangladesh shah not however be required to pay the said rent and Government of India hereby waives its right to charge such rent in respect of the leased area Clause 3 For the purposes stated in para 1 Bangladesh shall have undisturbed possession and use of the area leased to her in perpetuity Clause 4 Bangladesh Citizens including Police Para Military and Military personnel along with their arms ammunition equip ment and supplies shall have the right of free and unfet tered movement in the leased area and shall not be required to carry passports or travel documents of any kind
Movement of Bangladesh goods through the leased area shall also be free
There shall be no requirement of payment of customs duty tax or levy of any kind whatsoever or any transit charges
Clause 5 Indian citizens including police par Military and 38 Military personnel along with arms ammunition equipment and supplies shall continue to have right of free and unfettered movement in the leased area in either direction
Movement of Indian goods across the leased area shall also be free
For purpose of such passage the existing road running across it shall continue to be used
India may also build a road above and or below the surface of the leased area in an elevated or subway form for her exclusive use in a manner which will not prejudice free and unfettered movement of Bangladesh citizens and goods as defined in para 1 and 4 above
Clause 6 The two Governments shall co operate in placing permanent market along the parameters of the leased area and put up fences where necessary
 Clause 7 Both India and Bangladesh shall have the fight to lay cables electric lines water and sewerage pipes etc
over or under the leased area without obstructing free movement of citizens or goods of either country as defined in parts 4 and 5 above
Clause 8 The Modalities for implementing the terms of the lease will be entrusted to the respective Deputy Commissioners of Rangpur Bangladesh and Cooch Behar India
In case of Differences they refer the matter to their respective Governments for resolution
Clause 9 In the event of any BangladeshIndian national being involved in an incident in the leased area constitut ing an offence in law he shall be dealt with by the respec tive law enforcing agency of his own country in accordance with its national laws
In the event of an incident in the leased area involving nationals of both countries the law enforcing agency on the scene of the incident will take necessary steps to restore law and order
At the same time immediate steps will be taken to get in track with the law enforcing agency of the other country
In such cases any Indian national apprehended by a Bangladesh law enforc 39 ing agency shall be handed over forthwith to the Indian side and Bangladesh national apprehended by an Indian law enforc ing agency shall be handed over forthwith to the Bangladesh side
India will retain residual jurisdiction in the leased area
 It was further confirmed by the letters that the same would continue as an agreement between the two Governments and would be an integral part of the earlier agreement of 1974 concerning the demarcation of land boundary between India and Bangladesh and other related matters
Construing clauses 2 and 3 of the agreement of 1982 the learned Single Judge in the Calcutta High Court in the judgment under appeal had held that there was no question of lease or exclusive possession of Bangladesh of the said area
The undisturbed possession and use of the said area granted to Bangladesh under the said agreement of 1982 had to be read in the background of the purpose of the agree ment namely connecting Dahagram and Angarpota with Panbari Mouza of Bangladesh to enable the Bangladesh Government to exercise sovereignty over Dahagram and Angarpota
The learned Single Judge had further held that such undisturbed possession and use did not mean exclusive possession but merely meant that there would be no interference with the exercise of rights conferred by the agreement on Bangladesh Government and its nationals
The learned Single Judge had held that no transfer of possession of the area was contem plated under the agreement
Construing clause 9 of the agreement the learned Single Judge had held that under the said clause where persons were involved in any criminal offence in the said area if they were all Indian nationals the matter would be taken up by the Indian law enforcing agency
If the same involved only Bangladesh nationals the same would be dealt with by the Bangladesh law enforcing agency only
But where both Bangla desh and Indian nationals were involved in any incident the law enforcing agency of each State would take up the matter to the exclusion of the other
The learned Single Judge had held that the said clause conferred certain important rights to Bangladesh and took away some important rights of the Government of India its law enforcing agencies the courts in India and Indian citizens
At present the law enforcing agencies of India and the Indian Courts alone had exclusive jurisdiction in respect of such matters
The learned Single Judge had held that if the agreement was implemented the existing Indian law 40 and the machinery for enforcing such law would not be avail able in the area so far as Bangladesh nationals were con cerned
India would have no jurisdiction over Bangladesh nationals in respect of any offence committed in the area
The learned Single Judge however held that conferment of this power under the agreement to Bangladesh and abdication of any such power by India by itself did not amount to transfer of sovereignty in respect of the area
But the learned Judge noted that merely by virtue of the agreement and without any amendment of existing Indian law it might not be legally possible to take away existing jurisdiction of the law enforcing agencies of India or the Indian courts
The Division Bench of Calcutta High Court correctly noted that the learned Single Judge came to the following conclusions a Implementation of the agreements of 1974 and 1982 did not involve cession of any Indian territory to Bangla desh
b No exclusive or legal possession of Tin Bigha was being transferred to Bangladesh
c There was no question of transfer of sovereignty of India wholly or partially in respect of the said area
d Certain privileges only had been conferred on Ban gladesh and its nationals under the said agreements which otherwise they would not have
e 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
f In spite of the said agreements India would retain its sovereignty ownership and control over Tin Bigha
It was contended before the Division Bench that the agreement between India and Bangladesh of 1974 provided specifically that the same would be suitably ratified
But it had not been ratified
It was urged that in the absence of any ratification of the agreement of 1974 India and Bangladesh could not enter into the said subsequent agree ment in 1982 on the basis of the agreement of 1974
It was submitted that the said agreement of 1982 could not stand by itself
Learned Advocate had submitted before the Division Bench that under clause 41 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 connect Dahagram with the Panban mouza in the main land of Bangladesh
The subsequent agreement of 1982 was entered into between the two countries for imple menting the earlier agreement of 1974 and had to be con strued in the background of the latter
Several other con tentions were urged on behalf of the Union of India and the appellants before the Division Bench
All the contentions were noted by Mr Justice DK Sen as the learned Chief Justice then was who delivered the main judgment of the Division Bench in the judgment under appeal
He also noted the decision of this Court in Associated Hotels of India Ltd vs RN Kapoor  on the question of lease and licence and also the decision of this Court in the Presidential Reference noted above
The decision of this Court in Maganbhai Ishwarbhai Patel vs Union of India  Anr   which dealt with the cession of Rann of Kutch to Pakistan was also noted
This Court had reiter ated there that a treaty really concerned the political rather than the judicial wing of the State
When a treaty or an award after arbitration comes into existence it had to be implemented and this can only be if all the three branch es of Government to wit the Legislature the Executive and the Judiciary or any of them possess the power to imple ment it
On the question of sovereignty  reliance was placed before us on A Concise Law Dictionary  by PG Osborn 5th Edition p 297 where sovereignty  has been defined as the supreme authority in an independent political society
It is essential indivisible and illimitable
However it is now considered and accepted as both divisible and limita ble and we must recognise that it should be so
Sovereignty is limited externally by the possibility of a general re sistance
Internal sovereignty is paramount power over all action within and is limited by the nature of the power itself
At p 94 JG Starke in Introduction to International Law  9th Edition explains the position as under Normally a State is deemed to possess independence and sovereignty  over its subjects and its affairs and within its territorial limits Sovereignty  has a much more re stricted meaning today than in the eighteenth and nineteenth centuries when with the emergence of powerful highly natio nalised States few limits on State autonomy were acknowl edged
At the present time there is hardly a State 42 which in the interests of the international community has not accepted restrictions on its liberty of action
Thus most States are members of the United Nations and the Inter national Labour Organisation ILO  in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy
Therefore it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law
 In a practical sense it has been noted sovereignty would be largely a matter of degree
Reference in this connection has been made to the following authorities on the following aspects of international law International Law DPO Connell 2nd Edn
I page 552
Customary Restraints on Sovereignty A survey of actual servitudes is instructive when approach ing the more general question or customary restraints on sovereignty in the interests of neighbourly relations because they disclose the categories of situations suscepti ble of customary law treatment
With the exception of fish eries those treaties instanced as servitudes all give effect to the notion of freedom of access or of transit
The subject matter may be broken down into a consideration of the general principles of access and transit and then specific investigations of rivers and canals as media of transit   Freedom of access and transit The classical writers from Vittoria on were unanimous in their view that a State must permit others to trade with it and hence must grant them access and right of transit and the opinion was maintained in spite of a mercantilis theory of trade
 Access to enclaves There is cogency in the argument that a State has a right of access across alien territory to its enclaves area and in 43 fact enclaves have only survived because of the grant of necessary facilities so that all enclaves are servitudes
Whether in the absence of actual agreement there is a right of access was undecided by the International Court of Jus tice in the rights of passage case because it found that existing practice in the instant situation was the appropri ate guide and it was unnecessary to resort to general inter national law
The lesson on the face is that free access means in fact limited access but the fact remains that even though the territorial State has a discretion to regulate and authorise the exercise of rights these none the less remain rights
 In the actual case the Court allowed a latitude of discre tion to India which narrowed down in some respects almost to vanishing point the admitted right of access
In partic ular there was a dissent on the question whether armed forces were entitled to access
The Development of International law by International Court Sir Herson Lauterpacht 1958
A number of cases decided by the Court are instructive not so much as pointing to a restrictive interpretation of rights of sovereignty as in affirming its divisibility and capacity for modification in denying to it and rigid quali ty of absoluteness
The result in accordance with what is the essence of the system of mandates and trusteeship is to stress the func tional divisibility of sovereignty and then the absence from it notwithstanding doctrinal logic of any rigid element of absoluteness
However it is believed that the recognition by the Court of such situations involving as they do the separation of some functions and attributes of sovereignty from others is bound apart from affirming the relative nature of sover eignty to be beneficial for the development of internation al law and the peaceful adjustment of territorial and polit ical problems
Unless autonomy and delegated exercise of sovereignty are made distinguishable both in fact and in law from outright cession of territory it may be 44 difficult to secure for them the place to which they are entitled as an international institution rendering possible territorial arrangements and adjustments short of cession
The convenience of a rigid dichotomy of full sovereignty and the entire absence thereof is probably deceptive In the fight of authorities on International Law as noted above and the factual findings noted above we are of the opinion that the Division Bench came to the correct conclusion that the decision to allow Bangladesh to retain Dahagram and Angarpota under the agreements of 1974 and 1982 would not amount to cession of any part of the territory of India in favour of a foreign State
The Division Bench after examining the record came to the conclusion that both defac to and dejure Dahagram and Angarpota remained part of the East Pakistan and subsequently Bangladesh
If that is the position then undiputedly there was no question of cession of any part or any territory by the agreements of 1974 and 1982
This is a finding which is factually concluded
We are of the opinion that it is factually correct and not dis puted before us by the respondents
The Division Bench next considered whether by reason of the agreement of 1958 between India and Pakistan which was sanctioned by the Ninth amendment to the Constitution there was automatic exchange of the Pakistan enclaves in the eastern part of India with the Indian enclaves in eastern Pakistan
The Division Bench did not accept this position
The Division Bench noted that so far as the western border of India and Pakistan is concerned the agreement of 1958 between India and Pakistan has been given effect to
By an official notification 17th January 1961 was appointed as the day for the transfer of the territories of India by way of exchange with the territories of Pakistan in the western region
No further appointed day was notified so far as the eastern border of India was concerned and the provisions of the 1958 agreement so far as the eastern region of India was concerned remained unimplemented
The Division Bench held that there was no automatic transfer of Dahagram and Angar pota to India under the 1958 agreement between India and Pakistan in the absence of a notified appointed day
We are of the opinion that the Division Bench was pre eminently right in the conclusion it arrived
It is not also disputed before us that legally that was the position
Ninth amend ment had not become part of the Constitution as no appointed date was notified
In this connection reliance may be placed on the decision of this Court in AK Roy etc
vs Union of India  Anr
  Consequently Dahagram and Angarpota remained 45 and still remain part of the territory of East Pakistan and subsequently Bangladesh
This position has been recognised by both the Governments of India and Bangladesh in the two subsequent agreements of 1974 and 1982
In the aforesaid view of the matter the decision to allow Bangladesh to retain Dahagram and Angarpota does not amount to cession of Indian territory in favour of Bangladesh
This is well settled
The Division Bench has so held in the judgment under appeal
No argument was advanced before us challenging the aforesaid finding
Having regard to the facts found and the position of law we are of the opinion that the High Court was right in this aspect of the conclusion
The next question that falls for consideration is wheth er the agreement of 1958 between India and Pakistan which was sanctioned by the Ninth Amendment to the Constitution in 1960 became a final treaty binding on India and Bangladesh
It was also accepted that neither India nor Bangladesh has formally terminated the said treaty of 1958 and as such it was contended before the Division Bench that in so far as the provisions of the said agreement of 1958 concern Beru bari Union No 12 and the Cooch Behar enclaves including Dahagram and Angarpota were concerned they could not be given a go by in the manner purported to have been done
It appears as the Division Bench found that the said agree ment between India and Pakistan in 1958 was never implement ed so far as the border between West Bengal and East Bengal was concerned
The Division Bench held that it was always open to States to enter into new treaties or to vary or modify existing treaties by fresh agreements
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
Under the said two later agreements the provision of the earlier agreement of 1958 stood partially modified and superseded
This view was supported by the statement of law by DPO Connell in International Law  2nd Edition Vol
I pages 272278 and 279
The Division Bench has so held
We are in agreement with this view
No contrary view was can vassed before us
As mentioned hereinbefore it is clear from the said agreements of 1974 and 1982 that the transfer of territories which were sanctioned under the Ninth Amendment of the Constitution will not be given effect to
Bernbari No 12 which was intended to be given to East 46 Pakistan would not be given to Bangladesh and Dahagram and Angarpota which were intended to be transferred to India would be retained by Bangladesh
The question is whether to the extent as aforesaid a further amendment to the Constitution was necessary
The Division Bench was of the view that the subsequent agreements of 1974 and 1982 provid ing for exchange of territories would have to be noted in the relevant Schedules to the Constitution before any ap pointed day could be notified in respect of the territories to be transferred to Bangladesh
This was necessary in order to retain Berubari in India according to the Division Bench
Learned Attorney General has contended before us that this was not necessary and it was not conceded before the Division Bench that such amendment of the Constitution was called for
We are of the opinion that learned Attorney General is right in his submission
After having perused the entire judgment it appears to us that what the learned Attorney General had conceded before the Division Bench was that if the agreements of 1974 and 1982 amounted to cession of territory that would have required constitutional sanc tion or amendment
In view of the position in International law for the reasons mentioned hereinbefore the Division Bench has held that there was no cession of territory
If that is the position and we are of the opinion that it is so and further in view of the fact that no appointed day was notified and the Ninth Amendment to the Constitution has remained a dead letter and had not become effective no constitutional amendment was required for the arrangements entered into either by the agreements of 1974 and 1982
The Division Bench in our opinion was in error in expressing a contrary view
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 could have entered into the subse quent agreement of 1982 recording their understanding on the earlier agreements regarding Teen Bigha
This point accord ing to the Division Bench was of little substance
The later agreement of 1982 between India and Bangladesh by itself includes therein certain clarifications
The agreement between two countries might be ratified not only by a subse quent formal agreement but by actual implementation or by conduct and read properly in our opinion these two subse quent agreements did ratify the previous agreement
The submission that the agreement between India and Bangladesh of 1974 was a personal treaty between late Smt
Indira Gandhi and Late Sheikh Mujiber Rahaman and by reason of their 47 deaths the said treaty came to an end was of no substance was rejected by the Division Bench and was not pressed before us
The agreement of 1974 was a treaty between two sovereign countries India and Bangladesh and real treaty as understood in International law
The expression lease in perpetuity  used in the two agreements of 1974 and 1982 occurring in the recital is binding on the parties to the said document
Odgers Con struction of Deeds and Statutes had been cited as an author ity in support of this contention
But it has to be borne in mind that the expression lease in perpetuity  has to be understood in the context of and with reference to the objects of the agreements concerned
The meaning attributed to the expression lease in perpetuity  in private law can not be properly imported for the purpose of construing a document recording an agreement between two sovereign States acting as high contracting parties where neither of them is bound by the private law of the other
For the same reason it is not necessary to decide whether the said agreements of 1974 and 1982 amounted to or resulted in the grant of a licence by India in favour of Bangladesh under Indian law or within the meaning of the Indian Easement Act
This question has to be examined on the terms and conditions recorded in the said agreements and in the context of International Law to determine what rights are being conferred on the respec tive States thereunder
In that view of the matter the nomenclature used and the expressions recorded would not by themselves be of much significance
This view is supported by the observations of Ian Brownlie in Principles of Public International Law  2nd Edition
The use of the expression lease in perpetuity  in the recital of the agreement of 1982 and whether such recital operates as an estoppel against the parties is not of par ticular significance
In any event the Division Bench held that the recital in a deed could not operate as an estoppel against the specific terms and conditions thereof
On a construction of the agreement the Division Bench came to the conclusion that the agreements of 1974 and 1982 together in their entirety keeping in view the background must be judged
An important and significant fact in the background of which the said agreements had been entered into between India and Bangladesh was that the two areas Dahagram and Angarpota now intended to be retained by Bangladesh were enclaves wholly encircled and enclosed by the territories of India
If Bangladesh had to retain and exercise its sover eignty over these areas her access to the said areas was imperative and necessary
It is with that object namely to allow access to Bangladesh to Dahagram and Angarpota for the purpose of exercise of her sovereignty over and in 48 the said areas the said agreements had been entered into
It must be understood in that light and appreciated in the background of desire to maintain friendly and neighbourly relationships between two sovereign States
In the agreement of 1974 it was only recorded that India would lease in perpetuity to Bangladesh the said area at Teen Bigha to connect Dahagram and Panbari Mouza of Bangladesh
Terms and conditions of the intended lease were not set out in the agreement of 1974
In the subsequent agreement of 1982 it was clarified by the two Governments as to what would be the said lease in perpetuity 
The object of the said lease had again been specifically set out in clause 1 of the agreement of 1982
The other clauses of the said agreement which recorded also the terms and conditions of the transaction have to be understood in the background and context of the said object
In clause 3 of the agreement of 1982 no doubt it was recorded that Bangladesh shall have undisturbed possession and use of the area leased but the said clause also categorically recorded that such possession and use would be for the purposes stated in clause 1
In clause 2 of the agreement of 1982 it was specifical ly recorded that sovereignty over the leased area would continue to vest in India
This meant that Bangladesh would not exercise sovereignty over the said area
This is a specific declaration by the two States and there was no reason why this particular clause should be ignored or overlooked and the effects and implications thereof mini mised
Clause 2 further indicated that under the said agree ment only limited rights were being granted to Bangladesh and not all or all absolute rights over the territory in volved which would result in the surrender of sovereignty over the area by India
No right to administer the said territory had been given to Bangladesh
The specific rights which had been given to Bangladesh under the said agreements were inter alia the right of free and unfettered movement over and across for passage through the leased area
This right would be available to Bangladesh citizens including police para military and military personnel who would be entitled to move to the leased area with supply and equip ment including arms without passport or travel documents
A further right of movement of goods over and through the area without payment of customs duties or other similar tax or levy has been conferred by the agreement
Having examined the rights in the agreements we are of the opinion that this did not amount to lease or surrender of sovereignty as understood in the international law
In the Panama Canal s case See Hudson Cases
Cases  Other Materials on Interna tional Law 3rd Edition 1951 pp 222 3
See also lan Brownlie s Principles of Public International Law 3rd Edn p 116 a lease was 49 granted to the United States in perpetuity
The United States was given the occupation and control of the area concerned over and below the surface for the construction and protection of the canal
Moveover the United States was allowed under the lease to exercise over the canal zone all rights power and authority which it would possess if it were the sovereign of the territory
These are not the terms of the agreement before us
In the instant case the major right which had been conferred on Bangladesh was the right of free movement over the area
The right of undisturbed possession and use of the area under the agreement of 1982 has to be understood in the context of the right of free movement
It appears to us that it is not possible to hold that Bangladesh would have a right to occupy permanently the area or to construct buildings and fortification therein or to lay railway lines through the area
If such rights are sought to be exercised by Bangladesh in the area the same would interfere with rights of free movement in the area of Indian citizens and of Indian goods
As the right to free movement over the area by both the countries are being retained or granted therefore neither country and in particular Bangladesh can generally occupy or block any part of the area
The Division Bench held that under the said agreements specific and limited rights were being granted to Bangladesh
Such rights were not exclusive and the aggregation thereof would not amount to a lease as is commonly understood in favour of Bangladesh
We are of the opinion that the Division Bench was right in the view it took
A fortiorari the said transaction did not amount to cession of the said area of Teen Bigha in favour of Bangla desh
Cession as understood in international law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control domin ion and right over the same
This is not the position or the situation which is contemplated under the agreements
The rights intended to be conferred on Bangladesh under the said agreements would amount to what is known as servitude in International law
Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve purpose in favour of and in the interest of Bangladesh
These are however serf imposed restraints
On a proper construction of the agreements of 1974 and 1982 and the individual clauses it cannot be said that as a result of the said agreements India had surrendered its sovereignty over the said area of Teen Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the said territory to 50 the exclusion of India
Sovereignty is a quality of right
It is a bundle of rights
It depends on the facts and the circumstances of each case
Apart from anything else the specific clause in the agreement of 1982 that sovereignty over the area shall continue to vest in India stands in the way of a contrary construction
This clause distinguishes the concessions in the instant case from the grant in favour of the United States in Panama case supra where the United States received all right powers and authority within the zone of lease which it could possess and exercise if it were the sovereign of the territory leased
The state ments on the relevant aspect of International law in the authoritative text books noted earlier indicated that in the present and modern context sovereignty has and must have a more restrictive meaning that it had in the earlier cen turies when on the emergence of individual national States no limits on the power of states were acknowledged
See Introduction to International Law  by Strake supra
Any State in the modern times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no State can exist independently and without reference to other States
Under the general international law the concept of inter dependence of States has come to be accepted
Even without the said agreements of 1974 and 1982 so long as Dahagram and Angarpota remain part of Bangladesh the latter under the general International law and customs would have a right to access to the said enclave through the territory of India
It is this international practice and customs which has been recognised in the said agreements except that the military paramilitary and police of Bangladesh with arms ammunitions and equipments have also been given a right of passage through the area
The concessions given to Bangla desh over the said area might amount to servitudes suffered by India in its territory as known in international law
See the observations of Oppenheim 8th Edition p 537 538 and also Max Sorensen in Manual of Public International Law 1968 Edition which states that the acceptance of servitudes does not represent any negation of sovereignty
The term servitude means nothing more than accepted restrictions and grant of servitude does not amount to cession of terri tory
The Division Bench was unable to accept the contention that the use of the expression residual jurisdiction  in clause 9 of the agreement of 1982 indicates that India only retained residual sovereignty over the area and the defacto and real sovereignty in the said area has been surrendered to Bangladesh
The said expression in clause 9 refers to nothing more than the jurisdiction to be exercised by India in respect of incident occurring in the said territory involving law and order which may or may not amount to
51 commission of a criminal offence
The fact that certain old disputes between India and Pakistan regarding the said 12 thanas in the Sylhet District of Assam have not been settled with Bangladesh by the said agreements of 1974 and 1982 and that might remain pending is of no relevance to the legality and validity of the said agreements
The Division Bench expressed the view that perhaps the letters of the two countries will take remedial measures
On clause 9 it was submitted that the Bangladesh national committing an offence in the said area of Teen Bigha involving another Bangladesh national would be dealt with by the law enforcing agency of Bangladesh in accordance with the laws of Bangladesh
If the said territory remains a part of the territory of India then in such cases the law enforcing agency and the courts in India would not exercise their normal jurisdiction in respect of an offence committed by a Bangladesh national in the territory of India
This may necessitate suitable changes in the laws of India
The Division Bench for the reasons indicated above made the following order The respondents before implementation of the said agree ments of 1974 and 1982 are directed a To amend the Constitution of India suitably so that the Berubari Union is not transferred to Bangladesh along with the other territories as contemplated by the 9th Amendment of the Constitution
The agreements of 1974 and 1982 are directed to be suitably noted or recorded in the relevant Schedules to the Constitution authorising the transfer of the territories to Bangladesh and not Pakistan
b To take steps for acquisition and acquire the land owned by Indian Citizens in the said area in accordance with law c To consider and effect suitable amendment of Indian Law and in particular the Indian Penal Code and the Criminal Procedure Code as presently applicable in the said area of Tin Bigha
The appeals are disposed of as above
There will be no order as to costs
 52 We are of the opinion that so  far as clause a of the ordering portion of the judgment is concerned this was not warranted
There was no need to amend the Constitution of India so that the Berubari Union No 12 is not transferred to Bangladesh along with other territories as contemplated by the Ninth Amendment to the Constitution
Ninth Amendment to the Constitution has not come into effect
Therefore the agreements of 1974 and 1982 did not require to be suitably notified or included in that official gazette
The Division Bench has held that there was no cession of territory
There was no abandonment of sovereignty and therefore no consti tutional amendment was necessary in view of the facts men tioned hereinbefore
Justice Monjula Bose delivered a separate but concurring judgment
She held that sovereignty over the area in fact continued to be vested in India
She further held that there was no intention on the part of India to give Bangladesh either occupation or possession of Indian territory as such but merely undisturbed possession and for the express purpose of connecting Dahagram with Panbari Mouza of Ban gladesh to enable Bangladesh to exercise sovereignty over Dahagram and Angarpota and for no other purpose
We reiter ate the views of the said learned Judge that the complex ities of modern developed societies need peaceful co exist ence if the world is to survive
Amicable and peaceful settlement of boundary disputes are in the interests of the international community
The older and absolute ideas of sovereignty and independence has thus necessarily to be modified in the dawn of the 21st century
A perpetual right of passage and other incidental rights given to Bangladesh for the limited purpose for exercising the sovereignty over her own two enclaves within the territory of India andor if imposed restrictions on itself by India does not tantamount to transfer of interest in land
No constitutional amendment was necessary in view of the fact that 9th amendment had not come into effect as there was no appointed day fixed by the Parliament and the principles enunciated by the decision of this Court in AK Roy s case supra
Learned Attorney General submitted that the Division Bench was in error in directing changes and constitutional amendment as it has purported to do
In AK Roy s case supra this Court indicated the contention at p 272 of the report that the Government would be compelled to exercise its power to issue notification as to at what date the law has to come into effect
There under section 12 of the 44th Amendment Act it shall come into force on such date as the Central Govern ment may by notification in the Official Gazette appoint and different dates may be appointed for different provi 53 sions of the Act and thus leaving to the Government to fix date in this case cannot be interfered and since the ap pointed day had not been fixed the Ninth Amendment has not come into force
In that view of the matter the directions by the Court to amend the law cannot and should not be given
See in this connection the observations of this Court in State of Hima chal Pradesh  Anr
vs Umed Ram Sharma  Ors 1986 2 SCC 68
In State of Himachal Pradesh vs A parent of a Student of Medical College Simla  Ors 1985 3 SCR 676 this Court at p 684 of the report reiterated that the Court cannot group the function assigned to the executive and the legis lature under the Constitution and cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervi sory role over the law making activities of the executive and the legislature
The Court having held that 9th Amend ment to the Constitution has not come into effect and there being no cession of any part or territory or abandonment of sovereignty there was no cause to direct the legislature to amend or pass suitable laws
The Division Bench transgressed its limits to that extent
See in this connection the obser vations of this Court in State of Himachal Pradesh vs Umed Ram Sharma supra at pp
78 and 79 of the report
We are of the opinion that the directions of the Divi sion Bench of the Calcutta High Court to that extent may be deleted in clause a of the ordering portion
So far as to take steps for acquisition and to acquire the land owned by Indian citizens in the said area in accordance with laws is concerned it was wholly unnecessary because there was no land owned by the Indian citizens which was required to be acquired
So far as clause c of the ordering portion is concerned the Government has already taken steps and has agreed to take steps to amend the law
But the implementa tion of the agreements is not dependent on such steps being taken
While we modify the judgment and order of the Division Bench we must observe that this was really a fight over non issue
The Division Bench categorically held that there was no cession of territory and no lease in perpetuity
If that is so without the change in the law or change in the Constitution the agreement should have been implemented fully and we hope that will be done for the restoration of the friendly relations between India and Bangladesh
54 Before we conclude we must observe that Mr Khanduja counsel for respondent submitted that if the will of the people expressed that such agreement should be implemented then his client has no objection to such implementation
That is the good attitude to adopt
The appeal is disposed of in the aforesaid light and deleting the aforesaid directions of the Division Bench and the appeal is allowed to the extent
There will be no orders as to costs
RSS Appeals disposed of


Summary:
The High Power Pay Committee appointed under the direc tions of this Court in respect of the emoluments to be paid to the officers belonging to Class I and Class II Service employed in different public sector enterprises governed by the Central Government pattern of pay scales and dearness allowance submitted its report on November 2 1988
When the Central Government did not act expeditiously on that report the petitioners filed writs for a direction to imple ment the recommendations
Disposing of the writ petitions the Court directed 1
The scales of pay and dearness allowance as recom mended in the report would be extended to those employees who have been appointed with specific terms and conditions for grant of Central DA and those who were already being paid Central dearness allowance
1009G 2
The employees appointed on or after January 1 1989 would be governed by such pay scales and allowances as might be decided by the Government in its discretion
Those ap pointed earlier with IDA pattern would continue to be gov erned in accordance with the terms and conditions of their appointment
1009H 3
The pay revision for those employees in respect of whom the recommendations were being directed to be imple mented would take place only as and when similar changes were affected for the Central Government employees
These employees would however continue to enjoy the option to switch over to the IDA pattern of the scales of pay etc
on a voluntary basis
10lOB 1007 4
The various recommendations made in the report would he implemented with effect from the dates indicated
1010C 5
The arrears arising on account of pay DA and other allowances etc would he adjustable against ad hoc payments made from time to time
1011C