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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 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 agreement so far as it related to transfer of 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.

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.

Justice Monjula Bose delivered a separate but concurring judgment. She held that sovereignty over the area, in fact, continued to be vested in India. She further held that there was no intention on the part of India to give Bangladesh either occupation or possession of Indian territory as such, but merely "undisturbed possession" and for the express purpose of "connecting Dahagram with Panbari Mouza of Ban- gladesh to enable Bangladesh to exercise sovereignty over Dahagram and Angarpota and for no other purpose. We reiter- ate the views of the said learned Judge that the complex- ities of modern developed societies need peaceful co-exist- ence, if the world is to survive. Amicable and peaceful settlement of boundary disputes are in the interests of the international community. The older and absolute ideas of sovereignty and independence has thus necessarily to be modified in the dawn of the 21st century. A perpetual right of passage and other incidental rights given to Bangladesh for the limited purpose for exercising the sovereignty over her own two enclaves within the territory of India 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-