Full Judgment Text
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PETITIONER:
UNION OF INDIA AND ORS.
Vs.
RESPONDENT:
SUKUMAR SENGUPTA AND ORS.
DATE OF JUDGMENT03/05/1990
BENCH:
MUKHARJI, SABYASACHI (CJ)
BENCH:
MUKHARJI, SABYASACHI (CJ)
KANIA, M.H.
SHETTY, K.J. (J)
SAIKIA, K.N. (J)
AGRAWAL, S.C. (J)
CITATION:
1990 AIR 1692 1990 SCR (3) 24
1990 SCC Supl. 545 JT 1990 (2) 297
1990 SCALE (1)924
ACT:
Constitution of India, 1950: Articles 1, 3, 368 and
Constitution (Ninth Amendment) Act, 1960--Agreements of
1974 and 1982-Implementation of--Teen Bigha--Whether in-
volves cession of Indian territory to Bangladesh--Sover-
eignty over Dahagram and Angarpota--Whether arises.
HEADNOTE:
The Indian Independence Act, 1947 had set up two inde-
pendent dominions known as ’India’ and ’Pakistan’. A Bound-
ary Commission was appointed to determine the boundaries of
the two dominions, As a result of its Award, certain areas
of India became, after the partition, enclaves in East
Pakistan. Similarly, certain East Pakistan enclaves were
found in India. Dehagram and Angarpota were two such Pakis-
tani enclaves in India.
In view of the Award, Berubari Union No. 12 was treated
as part of the Province of West Bengal. Near about 1952,
Pakistan alleged that under the Award the Berubari Union
should really have formed part of East Bengal. Eventually,
in 1958 the Prime Ministers of India and Pakistan entered
into an agreement settling certain boundary disputes. The
agreement inter alia provided for the division of Berubari
Union No. 12 between India and Pakistan and exchange of
Indian enclaves in Pakistan and Pakistan enclaves in India.
Doubts arose regarding the implementation of the 1958
agreement. Therefore, in exercise of the powers conferred
upon him by clause (1) of Article 143 of the Constitution,
the President of India referred the matter to the Supreme
Court.
In the light of the opinion rendered by the Supreme
Court in Re: The Berubari Union and Exchange of Enclaves,
[1960] S.C.R. 3 250, the Constitution (Ninth Amendment) Act,
1960 was passed to give effect to the transfer of the terri-
tories as envisaged in the 1958 agreement.
25
By an official notification, 17th January 1961 had been
appointed as the day for the transfer of the territories of
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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.
In 1966, writ petitions challenging the validity of the
transfer of territories as stipulated in the Ninth Amendment
were dismissed by this Court in Ram Kishore Sen & Ors. v.
Union of India, [1966] 1 S.C.R. 430.
On or about the 16th May, 1974 an agreement was entered
into between the Prime Ministers of India and Bangladesh.
This agreement inter alia provided that India will retain
half of Berubari Union No. 12, which under the 1958 agree-
ment was to be transferred to Pakistan, and in exchange
Bangladesh will retain the Dahagram and Angarpota enclaves.
The agreement further provided that India will lease in
perpetuity to Bangladesh a small area near ’Tin Bigha’ for
the purpose of connecting Dahagram and Angarpota with Pan-
bari Mouza of Bangladesh. The 1974 agreement, however re-
mained unimplemented.
Thereafter, in October 1982 an understanding was reached
between the two governments in respect of ’lease in perpetu-
ity’ by India of the said area near ’Tin Bigha’ to enable
the Bangladesh government to exercise her sovereignty over
Dahagram and Angarpota. It was further agreed that the 1982
agreement would be an integral part of the earlier agreement
of 1974. It was also agreed that the sovereignty over the
leased area shall continue to vest in India.
Clause 9 of the 1982 agreement provided that India would
have no jurisdiction over Bangladesh nationals in respect of
any offence committed in the area, and the same shall be
dealt with by the Bangladesh law enforcing agency only.
In 1983, Writ Petitions were filed in the Calcutta High
Court challenging the validity of the agreement. The learned
Single Judge dismissed the writ petitions (Sugandhra Roy v.
Union of India, A.I.R. 1983 Cal. 483). The learned Single
Judge held that (i) Ninth Amendment in so far as it related
to exchange of the enclaves in eastern India had not come
into being; (ii) implementation of the agreements of 1974
and 1982 did not involve cession of any Indian territory to
Bangladesh; (iii) no exclusive or legal possession of Tin
Bigha was being transferred
26
to Bangladesh; (iv) there was no question of transfer of
sovereignty of India wholly or partially in respect of the
said area; (v) certain privileges only had been conferred on
Bangladesh and its nationals under the said agreement which
otherwise they would not have; (vi) as Dahagram and Angarpo-
ta would remain as parts of Bangladesh territory, the agree-
ments were necessary to enable Bangladesh to exercise its
sovereignty in full over the said enclaves; and (vii) in
spite of the said agreements India would retain sovereignty,
ownership and control over Tin Bigha.
Regarding clause 9 of the 1982 agreement, the learned
Single Judge held that the 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 sover-
eignty in respect of the area. The learned Single Judge,
however, noted that merely by virtue of the agreement and
without any amendment of the 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.
An appeal was filed before the Division Bench. It was
contended before the Division Bench that (i) the 1974 agree-
ment specifically provided that the same would be suitably
ratified but it had not been ratified; (ii) in the absence
of any ratification of the agreement of 1974, India and
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Bangladesh could not enter into the subsequent agreement in
1982 on the basis of the agreement of 1974; (iii) 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 Pakistani enclaves in
the eastern part of India with the Indian enclaves in east-
ern Pakistan; (iv) neither India nor Bangladesh had formally
terminated the treaty of 1958 and as such in so far as the
provisions of the said agreement of 1958 concern Berubari
union No. 12 and the Cooch Behar enclaves, including Daha-
gram and Angarpota, they could not be given a go-by in the
manner purported to have been done, and a further amendment
to the Constitution was necessary; and (v) the use of the
expression ’residual jurisdiction’ in clause 9 of the agree-
ment of 1962 indicated that Indian only retained residual
sovereignty over the area and the defacto arid real sover-
eignty in the area had been surrendered to Bangladesh.
The Division Bench repelled these contentions. The Bench
however was of the view that the agreements of 1974 and 1982
providing for exchange of territories would have to be noted
in the relevant schedules to the Constitution before any
appointed day could be notified in
27
respect of the territories to be transferred to Bangladesh.
According to the Division Bench, this was necessary in order
to retain Berubari in India.
Disposing of the appeal, this Court.
HELD: (1) The Division Bench came to the correct conclu-
sion that in so far as the eastern border of India was
concerned, the Ninth Constitutional amendment had not become
part of the Constitution as no appointed day had been noti-
fied, and in that view of the matter, the decision to allow
Bangladesh to retain Dahagram and Angarpota under the 1974
and 1982 agreements did not amount to cession of Indian
territory in favour of Bangladesh. [45A-B]
A.K. Roy, etc. v. Union of India & Anr., [1982] 2 S.C.R.
272: Maganbhai Ishwarbhai Patel v. Union of India & A nr.,
[1969] 3 S.C.R. 254, referred to.
(2) The Division Bench was pre-eminently right in arriv-
ing at the conclusion that there was no automatic transfer
of Dahagram and Angarpota to India under the 1958 agreement
in the absence of a notified appointed day, and consequently
both defacto and dejure these enclaves remained part of East
Pakistan and subsequently Bangladesh. [44G-H]
(3) The Division Bench had held that the agreements of
1974 and 1982 did not amount to cession of territory or
abandonment of sovereignty. If that is the position, no
constitutional amendment was required for the arrangements
entered into either by the agreement of 1974 or 1982. The
Division Bench was therefore in error in expressing a con-
trary view. [44B-C]
(4) In that view of the matter, the agreements of 1974
and 1982 did not require to be suitably notified or included
in the official gazette. Therefore, there was no cause to
direct the legislature to amend or pass suitable laws. [52B]
State of Himachal Pradesh v. Umed Ram Sharma, [1986] 2
S.C.C. 68; State of Himachal Pradesh v. A parent of a Stu-
dent of Medical College, Simla & Ors., [1985] 3 S.C.R. 676,
referred to.
(5) The expression ’lease in perpetuity’ has to be
understood in the context of and with reference to the
objects of the agreement. The object of the lease was to
allow access to Bangladesh to Dahagram and
28
Angarpota for the purpose of exercise of her sovereignty
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over and in the said areas. Having examined the rights in
the agreements, these do not amount to lease or surrender of
sovereignty as understood in the international law. [47B-D]
Associated Hotels of India Ltd. v.R.N. Kapoor, [1960] 1
S.C.R. 368, referred to.
(6) The Division Bench rightly 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
agreements, the Division Bench came to the correct conclu-
sion that the agreements of 1974 and 1982 together in their
entirety must be judged. [47F]
(7) An agreement between two countries might be ratified
not only by a subsequent formal agreement but by actual
implementation or by conduct, and read properly, the subse-
quent agreement did ratify the previous agreement. [46G-H]
(8) The Division Bench rightly held that under the said
agreements, specific and limited rights were being granted
to Bangladesh. Such rights were not exclusive and the aggre-
gation thereof would not amount to a lease, as is commonly
understood in favour of Bangladesh. [49D-E]
(9) Certain restrictions had been imposed on India over
its absolute sovereignty in the area to serve the purpose in
favour of and in the interest of Bangladesh. These are,
however, self-imposed restrictions. 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
agreement, 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 the exclusion of India. [49G-H]
(10) 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. [50A-B]
Panama Canal’s case Hudson Cases & Ors. Materials on
international Law, 3rd Edition, 1951 pp 222-3, distin-
guished.
29
(11) ‘Sovereignty’ has been defined as "the supreme
authority’ in an independent political society. It is essen-
tial, indivisible and illimitable. However, it is now con-
sidered and accepted as both divisible and limitable. Sover-
eignty is limited externally by the possibility of a general
resistance- Internal sovereignty is paramount power over all
action, and is limited by the nature of the power itself.
[41E-F]
(12) In the present and modern context sovereignty has
and must have a more restrictive meaning than it had in the
earlier centuries when on the emergence of individual na-
tional States, no limits on the power of States, were ac-
knowledged. 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 con-
cept of interdependence 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 enclose through the
territory of India. [50C-E]
(13) Amicable and peaceable settlement of boundary
disputes are in the interests of the international communi-
ty. The older and absolute ideas of ’sovereignty and inde-
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pendence has thus necessarily to be modified in the dawn of
the 21st century. A perpetual right to passage and other
incidental rights given to Bangladesh for the limited pur-
pose for exercising the sovereignty over her own two en-
claves within the territory of India and/or if imposed
restrictions on itself by India does not tantamount to
transfer of interests in India- [52E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2833-35
of 1987.
From the Judgment and Order dated 19.9.1986 of the
Calcutta High Court in A.F.O. No. 102 of 1984 in M.A. Nos.
3036 and 3062 of 1983.
Soli J. Sorabjee, Attorney General and N.S. Hegde,
Additional Solicitor General, Gopal Subramanium, Ms. A.
Subhashini and P. Parmeshwaran for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. 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 3(1) 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 3(3) of the Act.
Under section 3(3) 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, i.e., 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
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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
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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 No./O:--"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 Art. 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
Art. 3 of the Constitution would be incompetent and a law of
Parliament relatable to Art. 368 of the Constitution is
competent and necessary and also by saying that a law of
Parliament relatable to both Article 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. Question NO. 3 was also answered as
aforesaid. The said decision is reported in Re. The Berubari
Union and Exchange of Enclaves [1960] SCR 3 250. 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
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dismissed eventually by this Court. The said decision is
reported in Ram Kishore Sen & Ors. v. 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 v. 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 and/or 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 i(c) 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
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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, i.e., 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:
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"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 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 connect Dhagram with
Panbari Mouza (S. 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 (P.S. 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
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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 Bangladesh/Indian 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
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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-
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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 D.K. 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. 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 noted above. The decision of this
Court in Maganbhai Ishwarbhai Patel v. Union of India &
Anr., [1969] 3 SCR 254, 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 P.G. 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, J.G. 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, D.P.O. Connell, 2nd Edn. Vol.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
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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
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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 A.K. Roy, etc. v.
Union of India & Anr., [1982] 2 SCR 272. 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
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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
D.P.O’Connell in ’International Law’, 2nd Edition, Vol. I,
pages 272,278 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
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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
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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
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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
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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
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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 and/or 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 A.K. 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 A.K. 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 1(2) 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. v. Umed Ram Sharma & Ors., [1986] 2 SCC
68. In State of Himachal Pradesh v. 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 v. 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
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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.
R.S.S. Appeals disposed
of.
55