Case: Ram Kishore Sen And Others Vs. Union Of India And Others

1. 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. To their petition, they had impleaded as opponents the four respondents, the Union of India, the Secretary of External Affairs, Government of India, the State of West Bengal, and the Collector 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 Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri; but when Thana Boda was transferred 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 Nos. 5 and 6 are the inhabitants of village Chilahati, and according to them, this 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 Art. 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. (Spl. Ref. No. 1 of 1959, In re: Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250   at pp 256, 295-96: (AIR 1960 SC 845  at p. 862)). These three questions were thus formulatedIs 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 alternativethe above Reference, this Court endered the followingQ. (2) (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetentA law of Parliament relatable to Art. 368 of the Constitution is competent andA law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 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 Art. 3 to implement the Agreement.(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 the 10th September, 1958, the 23rd October, 1959, and the 11th January, 1960 entered into between the Governments of India and Pakistan. The relevant extracts from the said Agreements have been set out in the Second Schedule to the Ninth Amendment Act. The material portion of the said Schedule reads as followsBerubari Union No. 12.This will be so divided as to give half the area of Pakistan, the other half adjacent to India being retained by India. The division of Berubari Union No. 12 will be horizontal, starting from the north-east corner of Debiganjdivision should be made in such a manner that the Cooch Behar enclaves between Pachagar thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal will remain connected at present with Indian territory and will remain with India. The Cooch Behar enclaves 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 alleged that it had come to their knowledge that about a month before the date of their petition, officers of the two Governments had gone to the locality to make demarcation by holding a survey and that the respondents intended to effect a partition of Berubari Union No. 12 with a view to transfer the southern part of the said Union to Pakistan. They had also come to know that a similar attempt to transfer village Chilahati was being made. The appellants also alleged that the language of the Amendment Act in question in so far as it relates to Berubari Union No. 12 is involved and confused and is incapable of implementation. In the alternative, it is urged that if the division of Berubari Union No. 12 is made as directed by the said amendment, no portion of Berubari Union No. 12 would fall to the 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. In regard to the village to Chilahati, the appellants case was that the said village was not covered either by the Indo-Pakistan Agreements or by the Ninth Amendment Act. According to them, this village was a part of West Bengal and it was not competent to the respondents to transfer it to Pakistan without adopting the course indicated in that behalf by the opinion of this Court on the earlier Reference. That is how the appellants claimed the issue of a writ of or in the nature of Mandamus commanding the respondents to forbear from proceeding any further with the survey and demarcation of the area of Berubari Union No. 12 and Chilahati and from giving effect to their intentions to transfer a part of Berubari Union No. 12, and Chilahati to Pakistan. That is the substance of the petition filed by the appellants before the Calcutta High Court on December 4, 1963.4. The respondents disputed the appellants right to obtain any writ or direction in the nature of mandamus as claimed by them. They urged that the relevant provisions of the Ninth Amendment Act were neither vague nor confused, and were capable of implementation. It was alleged that the assumption made by the appellants that a strict horizontal line had to be drawn from the north-east corner of Debiganj Thana under the provisions of the said Amendment Act, was not valid; and they urged that the said Amendment Act had provided for the partition of Berubari Union No. 12 half and half in the manner indicated by it. The respondents were, therefore, justified in giving effect to the material provisions of the said Amendment Act. In regard to the village of Chilahati, the respondents counteded that the said village formed part of Debiganj Thana and had been assigned to the share of Pakistan by the Radcliffe Award. All that the respondents intended to do was to transfer to Pakistan a small area of about 512 acres of the said village which, had not been delivered over to Pakistan on the earlier occasion when partition was made. That being so, the intended transfer of the said village was fully legal and valid and did not contravene any provisions of the Constitution. On these pleadings, the parties led evidence in the form of maps, and these was argued elaborately before the learned trial Judge. The trial Judge has found against the appellants on all the important issues. He has held that the map Ext. A-1 on which the appellants substantially based their case, was really not admissible under S. 36 of the Indian Evidence Act. Alternatively, he found that the map was not reliable and could not be legitimately utilised for the purpose of determining the merits of the appellants contention. The learned Judge examined the maps produced by the respondents and came to the conclusion that they were admissible and reliable. On examining these maps, the learned Judge held that Berubari Union No. 12 could be divided half and half as required by the material provisions of the Amendment Act and that the appellants were not justified in contending that the said provision was not capable of implementation. In that behalf, the learned Judge placed considerable reliance on the congregated map Ex. 6. The learned Judge has rejected the contention of the appellants that if a fair partition of Berubari Union No. 12 is made as directed by the Amendment Act, no part of Berubari Union No. 12 would fall to the south and as such, no part of the said Union could be transferred to Pakistan. He was not impressed by the appellants, argument that the division of Berubari Union No. 12 had to be made by a strict horizontal line; in his opinion, the north-east corner of Debiganj Thana mentioned in the relevant provision was not a geometrical point, but it gives some scope for shifting the point of commencement to suit the process of division. When the provision says that the division shall be made horizontal, it only means that it was not to be vertical, it had to be according to the latitude and not according to the longitude. He observed that the problem presented by the relevant provisions of the Amendment Act was not intended to be solved as a mathematical problem, and what when the appellants contended that the division had to be made by a strict mathematical line, they ignored the fact that the said provision made no reference to any tangential planes or geometrical lines. On these findings, the learned Judge rejected the appellants prayer for the issue of a writ in respect of the proposed transfer of Berubari Union No. 12.5. 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, as 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 Chilhati 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 Art. 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 an 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.

Reasoning:
The map in question clearly does not fall under the latter category of maps; and so, before it is treated as relevant, it must be shown that it was generally offered for public sale. Since the learned Judge has rejected the statement of Mr. Gupta on this point, this requirement is not satisfied. We see no reason why view taken by the learned Judge in regard to the credibility of Mr. Guptas affidavit should be reversed. So, it follows that without proof of the fact that the maps of the kind produced by the appellants were generally offered for public sale, Ex. A-1 would be irrelevant.It is true that S. 83 of the Evidence Act provides that 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 purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of maps which satisfy the requirements prescribed by the first part of S. 83.Exhibit A-1 obviously does not fall under the category of the said maps, and so, there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons, for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukerjee has given us no satisfactory reasons for differing from the said conclusion.It is true that the appellants contended before the learned Judge that the agreement in question requires that a geometrical point be fixed at the north eastern extremity of Debiganj and then a geometrical line be drawn in a plane tangential to that geometric point, in the direction east to west at an angle of 900 to the vertical, and this line should divide Berubari Union No. 12 into two exact equal halves. The learned Judge found no difficulty in rejecting this contention, and we are satisfied that the conclusion of the learned Judge is absolutely right.When it is said that the division will be "horizontal", starting from the north-east corner of Debiganj Thana, it is not intended that it should be made by a mathematical line in the manner suggested by the appellants. In fact, the provision does not refer to any line as such, it only indicates broadly the point from which the division has to begin - east to west, and it emphasises that in making the said division, what has to be borne in mind is the fact that the Union in question should be divided half and half. Even this division half and half cannot, in the very nature of things, be half and half in a mathematical way. The latter provision of the Agreement in relation of Cooch Behar also gives additional guidence which has to be taken into account in effecting the partition of Berubari Union No. 12. Therefore, the learned Judge was plainly right in rejecting the contention of the appellants that a straight horizontal line has to be drawn from the north-east corner of Debiganj Thana in order to effect the division of Berubari Union No. 12. So, there is no substance in the contention raised by Mr. Mukherjee before us that the learned Judge should have issued a writ or order in the nature of Mandamus prohibiting the division of Berubari Union No.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 thisis 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.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 Chillahati was 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 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 Radcliffeis 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.