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Regarding the 1958 Agreement, he has submitted that after the decision of Supreme Court in Berubari Union Reference case, the Constitution 9th Amendment Act was enacted. He placed in details the relevant provision of the 9th Amendment Act. However, he has submitted that so far as the "appointed day" is concerned, in respect of Berubari Union and the exchange of enclaves, no such "appointed day" has been fixed and no notification fixing such "appointed day" has been published. Drawing my attention to Sub-section (c) of Section 2 of the 9th Amendment, he has submitted that the question of "transferred territory" would only arise after demarcation. There has been no demarcation so far as Eastern India is concerned. With reference to Section 3 (c) he has drawn my attention to the fact that the Amendment of the Constitution specified therein would be with effect from the "appointed day" and as there has been no "appointed day" in respect of the territories of the State of West Bengal is concerned. Such Constitutional Amendment has not yet come into effect. I should point out that though at first he submitted that the 9th Amendment was enacted for what was necessary, i. e. cession and not for what was unnecessary, i. e., acquisition, subsequently he did not press the same in view of his submission that the 9th Amendment has not yet come into effect so far as the territory in the Eastern India is concerned and that the position remains as it was before the 9th Amendment Act was enacted. He has submitted that Dahagram and Angarpota enclaves have not been made part of the Indian territory up to now and, therefore, the question of cession of the same does not arise. He has submitted that in any event a Treaty or an Agreement can be changed by another Treaty or Agreement. However, when such change involves a cession, an amendment of the Constitution is necessary as pointed out by Supreme Court. However, that is not necessary in the case of accession. He has admitted that the statement made in para. 6 of the affidavit-in-opposition affirmed on behalf of the Union of India to the effect that the "appointed day" within the meaning of the 9th Amendment was the 17th January 1961, is a mistake. This reference to the "appointed day" was in respect of the territories in the West of India and not in the Eastern India because no appointed day has yet been notified in respect of Eastern India.

41. I should also point out that appearing on behalf of the State of West Bengal, Mr. S. K. Acharva, Advocate General, adopted the arguments of the Learned Solicitor General.

42. The first question to be decided in this case is whether the said two enclaves, namely, Dahagram and Angarpota, formed part of the Indian territory at the time of the said 1974 or 1982 Agreement. If they did form a part of the Indian territory at the relevant time, then there cannot be any doubt that implementation of the said two Agreements, would amount to cession of an Indian Territory and accordingly will require amendment of the Constitution as it was done by way of 9th amendment of the Constitution pursuant to Berubari Union Reference Case. It is not disputed that in spite of the earlier Agreement of 1958 and the 9th Amendment, the 1974 and 1982 Agreements provide that though other enclaves are to be exchanged but not these two. It is not disputed before me that originally, that is, before 1958 Agreement, these two enclaves did not form part of the Indian territory and that therefore they were not included within the First Schedule to the Constitution. It is not disputed that before the 1958 Agreement these two enclaves formed part of the territory of Pakistan and that they were administered and governed as such. The question is whether subsequently, by virtue of the 1958 agreement or the 9th Amendment, these two enclaves ceased to be a part of the territory of Pakistan (subsequently Bangladesh) and formed part of India.

49. The next question is whether these two enclaves formed, a part of the Indian territory after and in view of the 9th Amendment of the Constitution. I have already set out the 9th Amendment. It is clear that in view of the decision of the Berubari Union case if the 9th Amendment had come into effect and if the First Sch. to the Constitution stood amended in accordance with such 9th Amendment, then obviously these two enclaves formed part of the Indian territory and a part of West Bengal because of such amendment. If the 9th Amendment had come into effect, the definition of the territory of West Bengal within the meaning of First Sch. of the Constitution has undergone a change and the First Sch. to the Constitution stands amended as provided in the said Agreement, which, inter alia, provides that there will be exchange of these enclaves. But the crucial question is whether the 9th Amendment has in fact come into effect so far as these enclaves are concerned before 1974 or 1982. As already noticed the relevant section is Section 3 of the 9th Amendment which provides that from the 'appointed day', in the First Sch. to the Constitution in the paragraph relating to the territories of the State of West Bengal, the words, brackets and figures "but excluding the territories referred 1o in Part. III of the First Sch. to the Constitution (Ninth Amendment) Act, 1960" shall be added to the end. The territories referred to in Part III of the First Sch. to 9th Amendment is the transferred territory in relation to item (3), item (5) and item (10) of para 2 of the 1958 Agreement. The item No. 10 of the 1958 Agreement provides for exchange of old Cooch Behar enclaves in Pakistan and Pakistan enclaves in India without claim to compensation for extra area going into Pakistan. Admittedly these two enclaves come into the ambit of the same. Therefore, if the 9th amendment has come into effect, so far as exchange of enclaves is concerned, and if the First Sch. to the Constitution stands amended in the manner stated, then these two enclaves have since the Ninth Amendment to the Constitution coming into effect, formed a part of the Indian territory being a part of the State of West Bengal. However in the facts of this case these two enclaves did not form part of the territory of India or West Bengal as a result of such amendment because the 9th Amendment, at least so far as it relates to the exchange of enclaves and the transfer of the southern portion of Berubari Union, has not yet come into effect. It is to be noticed that such amendment is to come to effect from the 'appointed day'. The 'appointed day' within the meaning of Sec. 2 (a) of the 9th Amendment 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 after causing the territories to be so transferred and referred to in the First Sch. demarcated for the purpose. It was further provided that different dates may be appointed for the transfer of such territories from different States and from the Union territory of Tripura. The learned Solicitor General has produced before me two notifications regarding the 'appointed day' which are as follows :--

(No. 4 (5)-Pak III/60 (ii)) Y. D. Gundevia Secy." He has stated that apart from these, there is no other Gazette a Notification fixing any other "appointed day" within the meaning of 9th Amendment and that in respect of the Eastern India, particularly the Berubari Union and the (Pakistani) enclaves, no such Notification has yet been issued. This is not challenged on behalf of the petitioner and nothing is produced to contradict such a statement. From the aforesaid it is clear that the said 9th amendment, so far as it relates to exchange of the enclaves, has not come into, effect by virtue of the said Ninth Amendment in view of the fact that it is expressly provided in the said 9th Amendment that only from the "appointed day" the Schedule to the Constitution shall be amended and there being no "appointed day" in respect of the territories in the Eastern India. the First Sch. to the Constitution remains unamended so far as the Eastern India is concerned particularly the Berubari Union and the enclaves. Therefore, either in fact or in law there was no accession to India in respect of these two enclaves. They remained a part of Pakistan (now Bangladesh) as they were before.