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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.

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 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 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 the East Pakistan in 1958. Two items in Para 2 of the said Agreement were items 3 and 10. These were as follows:

"This will be so divided as to give half the area to Paki- stan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be hori- zontal, starting from the north-east corner of Debiganj Thana. The division should be made in such a manner that the Cooch Behar enclaves between Pachagar Thana of West Bengal will remain connected as at present with Indian territory and will remain with India. The Cooch-Behar Enclaves lying between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan."

Item 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:

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.