http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 46  

PETITIONER: MAGANBHAI ISHWARBHAI PATEL

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT: 09/01/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. MITTER, G.K. GROVER, A.N.

CITATION:  1969 AIR  783            1969 SCR  (3) 254  1970 SCC  (3) 400  CITATOR INFO :  RF         1990 SC1692  (13)

ACT: Constitution  of India, Arts. 1, 3, 73, 254, Entries 14,  15 List  1,  Schedule VII-Award settling  disputed  boundary-If constitutional  amendment  necessary for  implementation  of award-Implementation  of  treaties,  and  arbitral   awards- Boundary  dispute,  settlement of and cession  of  territory difference between.

HEADNOTE: The Constitution of India, Art. 1 defines the "territory  of India"  as including the territories of the States; and  the States and ’the territories thereof are as specified in the First  Schedule.   Article 3 enables Parliament  by  law  to alter the boundaries of the existing States and it  includes the power to increase the area of any State or diminish  the area  of  any State.  The power to legislate in  respect  of treaties  lies with the Parliament by virtue of  entries  10 and  14  of  List I of Seventh  Schedule,  namely,  "Foreign affairs;  all  matters which bring the Union  into  relation with  any foreign country" and "entering into  treaties  and agreements  with  foreign  countries  and  implementing   of treaties,   agreements   and   conventions   with    foreign countries".  Article 253 provides that Parliament has  power to  make any law for the whole or any part of the  territory of   India  for  implementing  any  treaty,   agreement   or convention  with  any  other country  or  countries  or  any decision  made at any international conference,  association or  other  body.  Article 73 lays down  that  the  executive power  of  the  Union ’shall extend  to  "the  matters  with respect  to which Parliament has power to make laws’ and  to "the exercise of such rights, authority and jurisdiction  as are exercisable by the Government of India by virtue ’of any treaty or agreement". With the enactment of the Indian Independence Act, 1947, and the  lapse  of Paramountcy of the Crown the State  of  Kutch merged  with  the  Dominion of  India.   The  territory  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 46  

constituted  into a Chief Commissioner’s Province and  under the  Constitution the territory became a Part C State.   Its extent  was  determined  by Part C to Sch.  1  of  the  Con- stitution  as "territories which by virtue of an order  made under  s.  290A of the Government of India Act,  1935,  were immediately  before  the commencement  of  the  Constitution being  administered  as if they were  a  Chief  Commissioner Province, of the same name".  Kutch was incorporated in  the State  of Bombay by the States Reorganisation Act, 1956  and was  included  in the new ’State of Gujarat  by  the  Bombay Reorganisation Act, 1960. The  Great Rann of Kutch lies between the mainland  of  Sind (now  part of Pakistan) and the mainland of Kutch, For  four months in the year it is mostly under water, for the rest of the  year  it is marshy land.  From the very nature  of  the terrain the boundaries of the Rann are shifting, its  extent depending  on the violence of natural elements in  different years.  The northern boundary of the Rann, therefore, always remained  ill defined.. From 1948 onwards  diplomatic  notes were exchanged between the Governments of India and Pakistan concerning  the  boundary between the two countries  in  the Gujrat-West  Pakistan  Sector.  The dispute  led  ’to  great tension  between  the  two  countries  resulting  in   armed conflict in 255 1965.   In June 1965 the Governments of India  and  Pakistan concluded  ,an  agreement  for setting up  a  Tribunal  "for determination and demarcation of the border" in the area  of Gujarat-West  Pakistan.   ’Both  Governments  undertook   to implement  the  findings of the Tribunal.  The award  to  be made  by  the Tribunal was, it was agreed, to operate  as  a self executing arrangement; it, was not only to declare  the boundary  but  also to provide for fixing  its  location  on site.   By  award  dated February  19,  1968,  the  Tribunal accepted  the  claim of Pakistan to three  sectors  and  two inlets in the Rann of Kutch. The petitioners, who claimed infringement of the fundamental rights  guaranteed  under Art. 19(1)(d)(e) and  (f)  of  the Constitution, moved this Court under Art. 32 to restrain the Government of India from ceding to Pakistan the  territories in  the Rann of Kutch awarded by the Tribunal.  None of  the petitioners claimed that the award bad to be rejected.  They contended  that the territories were part of India  and  had always beep so from the establishment of the two  Dominions, that  India had exercised effective  administrative  control over  them and-that giving up a claim :to those  territories involved  cession  of Indian territory which could  only  be affected  by  an  amendment of the  First  Schedule  to  the Constitution.   The  Union  of India,  on  the  other  hand, contended  that no cession of territory was  involved  since the  dispute concerned the settlement of boundary which  was uncertain,  that the award itself was the  operative  treaty and  after demarcation of boundary it was only necessary  to exchange letters recognising the established border. HELD : The Award does not purport to nor does it operate  as giving  rise to an obligation to cede Indian  territory  and therefore  no  constitutional amendment is  necessary.   The decision  to  implement the Award by  exchange  of  letters, treating the award as an operative treaty after the boundary has  been marked, is within the competence of the  executive wing of the Government. [288 H-289 B] (Per Hidayatullah, C.J., Hamaswami, Mitter and Grover, JJ.) The  Award has been accepted by the Government of India  and therefore  it is binding.  An examination  of  International Arbitration  Awards only reveals that generally an Award  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 46  

not accepted when the terms of submission are departed  from or  there are fatal missions,contradictions  obscurities  or the  arbitrators substantially exceeded their  jurisdiction. None of these factors obtains here and the petitioners  have rightly refrained from challenging the binding nature of the Award. [269 F] (ii) When a treaty or an Award after arbitration comes  into existence  it has to be implemented and this can only be  if all   the  three  branches  of  Government,  to   wit,   the legislature the executive and the judiciary, or any of them, possesses  the  power  to implement  it.   The  practice  of nations  is different in the matter of’:  implementation  of treaties  and  arbitration awards in  boundary  disputes  in particular.   The  question is one of domestic  as  well  as International Law.  In the United States of America a treaty is the Supreme Law and it is only when the terms of a treaty require  that  a  law must be passed that it has  to  be  so passed.  Under the French Constitution treaties that require ratification by law include treaties of cession, exchange or addition   of   territory.   In  England,  as   no   written constitution exists, difference is made between treaties  of peace when the Crown acts without obtaining the approval  of Parliament and session in peace time when such approval must be  had.  But even so a distinction is made in the  case  of British possessions abroad and the United Kingdom.  Again  a difference  is made in cases involving minor  changes  where boundaries have to be ascertained and adjusted. [275 G] 256 Foster  v. Neilson 2 Peters 253; Dickinson Law  of  Nations, Blackstone’s  Commentaries, Forsyth Hansard vol.   CLXIX  p: 230, 231; The Parlement Belge, [1879] 4 P.D. 129; Walker  v. Baird  [1892]  A.C. 491 and Attorney-General for  Canada  v. Attorney-General  for  Ontario,  [1937]  A.C.  326  it  347, referred to. In  British India Parliamentary sanction was  not  necessary for  cession of territory.  The Constitution of  India  does not contain any clear direction about treaties such as is to be  found  in the United States  and  French  Constitutions. Therefore in our country we can only go by inferences  from our  Constitution,  the circumstances and  precedents.   The legislative entries which enable Parliament to enact laws in respect  of  treaties  are to be read with  Art.  253.   The Article adds nothing to the legislative entries but  confers exclusive  power of law making upon Parliament. [276  B,  C; 277 A-B] The  precedents of this Court are clear only on  one  point, namely,  that no cession of Indian territory can take  place without a constitutional amendment.  The first Berubari case dealt  with transfer of territory which was de facto and  de jure  Indian  territory and therefore as the  extent  Indian territories as defined in Art. 1 read with the 1st  Schedule was  reduced a constitutional amendment was held  necessary. The  second Berubari case concerned territory which  was  de facto  under administration by India but being de jure  that of Pakistan, transfer of that territory which was not a part of Indian territory was held not to require a constitutional amendment.  Neither case dealt with a boundary dispute. [282 G283 C] In  re  : The Berubari Union and Exchange of  Enclaves  (The First  Berubari case), [1960] 3 S.C.R. 250 and  Ram  Kishore Sen v. Union of India (The second Berubari ’case), [1966]  1 S.C.R. 430, explained. The question on which side a disputed border falls is one of authority.   Who in the State can be said to possess  Plenum dominium  depends  upon the Constitution and the  nature  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 46  

adjustment.  As to the necessity of it courts must assume it as  a matter of law.  It is scarcely to be thought that  the validity of the action can ever depend upon the judgment  of a  court.   A  boundary dispute and  its  settlement  by  an arbitral.  tribunal  cannot be put on the  same  footing  as cession  of  territory.  An agreement to refer  the  dispute regarding   boundary   involves   the   ascertainment    and representation  on the surface of the earth a boundary  line dividing  the  neighbouring countries and the very  fact  of referring  such a dispute implies that the executive may  do such  acts  as  are necessary, for  permanently  fixing  the boundary.   Ordinarily, an adjustment of a  boundary,  which International  Law  regards as valid  between  two  nations, should  be recognised by the courts and  the  implementation thereof can always be with the executive unless a clear case of  cession is involved when parliamentary intercession  can be expected and should be had.  This has been the custom  of nations  whose constitutions are not sufficiently  elaborate on this subject. [283 D284 B] (iii)The   petitioners   have  not  established   that   the territories  ceded  to Pakistan was a part  of  Kutch.   The phrase  "as if they were a Chief Commissioner’s Province  of the  same  name"  in  Part  C,  to  first  Schedule  of  the Constitution  must  be understood as was laid down  by  this Court in the second Berubari case where the word "as if" was held  to  refer  to "territories which  originally  did  not belong to West Bengal but which became a part of West Bengal by  reason of merger agreements." The history of Kutch  does not establish that the territories were part of Kutch.   The White  Paper on Indian States only gives the area  of  Kutch not  the  boundaries.  The Kutch merger agreement  gives  no clue to the boundaries                             257 and  also leaves the matter at large.  Also, in  the  States Merger  (Chief Commissioner’s) Province Order, 1949, in  the States   Reorganisation   Act,  1956  and  in   the   Bombay Reorganisation  Act,  1960 the boundaries of Kutch  are  not mentioned.   Therefore,  none of these documents is  of  any help in determining boundaries or that the disputed area was definitely  a  part  of India. The assertion  of  the  Prime Minister  of India in 1956 and later in 1965 that  the  area belonged to India was only a statement and cannot be held to he  of  an evidentiary character.  The claim map  and  other evidence  produced  by India before the Tribunal  show  that there  has never been clear demarcation of boundary in  this area. [281 H, 286 AB] (iv) There is no evidence of administration ’of the disputed area by India.  The existence of Watch and Ward Officers  or the  establishment of a polling booth for them  at  election time  cannot connote administration such as would make  them territory  of India.  The diplomatic notes began soon  after the  establishment of the two dominions and  the  occupation may have meant de facto control but there was no proof of de jure  occupation or any other  administration.   Sovereignty over  an  area  is a matter of  inference  and  unless  real existence  of  sovereignty over this area  is  proved  India cannot be in de jure occupation. (Per  Shah  J.)  : (i) The Constitution of  India  makes  no provision  making legislation a condition of the entry  into an  international  treaty  in times of war  or  peace.   The executive is qua the State competent to represent the  State in all matters international and may incur obligations which in International Law are binding upon the State.  There is a distinction between the formation and the performance of the obligations constituted by a treaty.  Under the Constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 46  

the obligations arising under the agreement or treaties  are not  by  their own force binding upon  Indian  nationals  or others.  The power to legislate in respect of treaties  lies with  the Parliament and making of law under that  authority is  necessary  when  the treaty  or  agreement  operates  to restrict  the rights of citizens or others or  modifies  the laws of the State.  If the rights of the citizens and others which  are  justiciable  are not  affected,  no  legislative measure  is  needed to, give effect to.  the agreement  or treaty. [299 D-F] The  Parlement  Belge, [1879] 4 P.D. 129, Walker  v.  Baird, [1892] A.C. 491 and Attorney-General for Canada v. Attorney- General for Ontario, [1937] A.C. 326, referred to. The  argument  that  power to make  or  implement  a  treaty agreement   or  convention  can  only  be  exercised   under authority  of  law proceeds upon a misreading of  Art.  253. The  effect  of Art. 253 is that if a  treaty  agreement  or convention with a foreign State deals with a subject  matter within   the  competence  of  the  State  Legislature,   the Parliament alone has,. notwithstanding Art. 246(3) the power to   make,  laws  to  implement  the  treaty  agreement   or convention.   In  terms the Article deals  with  legislative power; thereby power is conferred upon the Parliament  which it  may  not  otherwise possess.  But it does  not  seek  to circumscribe the extent of the executive power conferred  by Art.,  73; the exercise of this power must be  supported  by legislation  only if in consequence of the exercise  of  the power,  rights  of  citizens or  others  are  restricted  or infringed or laws   are modified. [299 G-300 C] (ii) In  implementing the Award there is no cession  of  the territory  of India to Pakistan.  A review of the  terms  of the agreement, the unanimous introductory part of the  Award and   the   terms   of  the  agreement   relating   to   the implementation  of  the Award and the final Award,  make  it abundantly  clear that the dispute relates to  the  boundary between the two. 2 58 States, settlement of dispute which relates to the alignment of  an  undefined boundary between two  States  involves  no cession of territory by either State.  In the First Berubari case  this  Court advised that the Indo  Pakistan  agreement could be implemented under the authority of a constitutional amendment  only, because, there was no question of  demarca- tion  of a disputed boundary; it was a case of pure  cession of territory.  Therefore the principle of the first Berubari case  has no application to the facts of the  present  case. The  second Berubari case related to transfer  of  territory which  though  temporarily under Indian  administration  had never  become Indian territory.  The principle of this  case is against the contention raised by the petitioners. [301 C- 302 F] In  re  : The Berubari Union and Exchange of  Enclaves  (the first  Berubari case),, [1960] 3 S.C.R. 250 and Ram  Kishore Sen V. Union of India, (the second Berubari case),, [1966] 1 S.C.R. 430 explained. There  is no definite and reliable piece of  evidence  which establishes  ;that the disputed seam were part of the  State of  Kutch  and, therefore, part of the territory  of  India. Conflicting  claims  were  made from time  to  time  by  the British authorities and the Maharao of Kutch; and about  the exercise  of sovereign rights over the areas now in  dispute the evidence in scrappy and discrepant.  Different positions were  adopted  by the officers of the  Government  of  India according  as  the  exigencies  of  a  particular  situation demanded.  These statements or assertions do not evidence an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 46  

existing state of affairs; they were only made to support or resist claims then made, or to serve some immediate purpose. [305 F-H] Regarding  the  two  inlets the  ultimate  decision  of  the Tribunal is founded on considerations of expediency and  not on strict determination of rights.  But the ground on  which the  Award is made against the claim made by the  Government of  India, does not strengthen the rights of  the  claimants for  relief.   There  being  no  evidence  of  exercise   of sovereign authority over the inlets by the Maharao of  Kutch this  Court cannot treat them as part of  Indian  territory. Exercise  of de facto authority over the territory  in  the’ sectors after the disputes took concrete form is evidence of an  assertion  merely  and  not  evidence  of   pre-existing sovereign rights. ,The merger of the State of Kutch with the Dominion  of India does not result in vesting  of  sovereign authority  over the territory unless the suzerainty  of  the State of Kutch is established.  The Award does no more  than define  on the surface of the earth a boundary which has  at all material times remained indefinite because of the nature of  the terrain, the shifting nature of the border  of  what was  called  Rann, the highly  discrepant  and  ’conflicting claims made from time to time by the British authorities  as well as the Kutch-State authorities before the State  merged with  the  Dominion  of India in  1948  and  the  persistent refusal  of  the  British  authorities,  though  there  were several  occasions, to demarcate the boundary  between  Sind and the Rann of Kutch. [307 G; 208 D-E]

JUDGMENT: CIVIL  APPELLATE JURISDICTION/ORIGINAL  JURISDICTION:  Civil Appeal No. 1528 of 1968. Appeal by special leave from the order of March 18, 1968  of the  Gujart High Court in Special Civil Application No.  365 of 1968 and Civil Appeals Nos. 1900 and 2118 of 1968. Appeals  from the judgment and order dated May 14,  1968  of the  Delhi High Court in Civil Writ Petitions Nos.  343  and 294                             259 of  1968 and Petitions under Art. 32 of the Constitution  of India for the enforcement of the fundamental rights. I.   N.  Shroff,  for  the appellant (in C.A.  No.  1528  of 1968). A.   S.  Bobde,  G.  L.  Sanghi, V.  K.  Sanghi  and  S.  S. Khanduja, for the appellant (in C.A. No. 1900 of 1968). C.   B.  Agarwala, Virendra Kumar, S. S. Pareikh, Uma  Mehta and S. S. Khanduja, for the appellant (in C.A. No. 211’8  of 1968). The petitioner appeared in person (in W.P. No. 109 of 1968). The petitioner appeared in person (in W.P. No. 234 of 1968). The petitioner appeared in person (in W.P. No. 402 of 1968). C.   B.  Agarwala,  B. N. Antani and R. K.  Bhatt,  for  the petitioner     (in W.P. No. 403 of 1968). A.   S.  Bobde  and S. S. Khanduja, for the  petitioner  (in W.P. No. 409 of 1968). C.   K. Daphtary, B. Sen, R. H. Dhebar and S. P. Nayar,  for the Union of India (in C.A. Nos. 1528, 1900 and 2118 of 1968 and W.P. Nos. 234, 402 and 403 of 1968). G.   R.  Rajagopal;  R. H. Dhebar and S. P. Nayar,  for  the Union of India (in.  W.P. No. 109 of 1968). C.   K.  Daphtary,  B.  Sen, A. Sreedharan  Nambiar,  R.  H. Dhebar and S.  P. Nayar, for the Union of India (in W.P. No. 409 of 1968).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 46  

R.   H.  Dhebar and S. P. Nayar, for the State of Gujarat. The  Judgment of HIDAYATULLAH, C.J., RAMASWAMI,  MITTER  and GROVER,  JJ.  was delivered by HIDAYATULLAH, C.J.  SHAH,  J. delivered a separate Opinion. Hidayatallah, C.J. These are five writ petitions under  Art. 32  of  the  Constitution and  three  appeals  against  the decisions  of, the’ High Courts of Gujarat and  Delhi.   The writ petitions have been filed by Mr. Manikant Tiwari  (W.P. No.  109/68), Mr. Shiv Kumar Sharma (W.P. No.  234/68),  Mr. Madhu  Limaye (W.P. No. 402/68), Mr.  Gulabshankar  Amritlal Dholakia  (W.P. No. 403/68) and Mr. Node Sadi Rau (W.P.  No. 409/68).   The  appeals from the Delhi High  Court’s  common judgment,  14 May, 1968 on certificate are by Mr.Shiv  Kumar Sharma  (C.A.  No.  2118/68) and Major  Ranjit  Singh  (C.A. 1900/68)  and  the appeal from the decision of  the  Gujarat High  Court  is in a writ petition filed by  Mt.   Maganbhai lshwarbhai  Patel  (C.A.  No. 1528/68).   The  Gujarat  High Court, 18 March, 1968, dismissed 260 the petition summarily and the appeal is by special leave of this Court.  This judgment will dispose of all of them. The several petitioners seek a writ of mandamus or any other appropriate  writ or order or direction under Article 32  of the  Constitution to restrain the Government of  India  from coding  without the approval of Parliament the areas in  the Rann  of  Kutch known as  Kanjarkot,  Chhadbet,  Dharabanni, Priol  Valo Kun and two inlets on either side of  Tharparkar to  Pakistan  as awarded to’ it in the award,  19  February, 1968,  of  the Indo-Pakistan Western Bombay  case  Tribunal. Mr.  1. N. Shroff (C.A. No. 1528/68), Mr. A. S. Bobde  (C.A. No.  1900/68)  and  Mr.  C. B.  Agarwal  (W.P.  No.  403/68) represented three such petitioners.  Mr. Shiv Kumar  Sharma, Mr.  Madhu Limaye and Mr. Manikant Tiwari argued  their  own matters.   The Union of India was represented by Mr.  C.  K. Daphtary,  former  Attorney General of India, who  had  also conducted the case for India before the Tribunal. The Indian Independence Act of July 18, 1947, (an Act of the British Parliament) created from August 15, 1947 two  domi- nions known as India and Pakistan.  By the same statute  the paramountcy  of the British Crown over the States  of  Kutch Santalpur,  Tharad, Suigam, Way and Jodhpur lapsed and  they soon  acceded to and merged with India.  The former  British Indian  Province of Sind was included in Pakistan while  the Presidency  of Bombay was part of India.  Between these  two lies the Great Rann of Kutch, Sind shutting on the North and West and the Indian mainland on the South and East. The Rann is a vast expanse of water and desert.  For part of the  year  even the desert is covered by  water.   At  other times  it  is either soft mud or land with  grass.   No  one ordinarily  lives  in that area which the  onagers  roam  at large. It  appears  that from July 1948 Diplomatic Notes  were  ex- changed  between  the  two Governments with  regard  to  the boundary  ’between  the  areas known  as  Gujarat  and  West Pakistan.   The difference led to open hostilities in  April 1965.   On  June  30, 1965 the two  Governments  reached  an agreement which read               "Constitution of the Tribunal, Proceedings.               On 30 June, 1965, the Government of India  and               the   Government  of  Pakistan  concluded   an               Agreement, reading as follows :               Whereas  both,  the Governments of  India  and               Pakistan  have agreed to a cease-fire  and  to               restoration of the status quo as at 1 January,               1965, in the area of the Gujarat-West Pakistan

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 46  

             border  in the confidence that this will  also               contribute  to  a  reduction  of  the  present               tension along the entire Indo-Pakistan border;                                    261               Whereas it is necessary that after the  status               quo  has  been established  in  the  aforesaid               Gujarat-West     Pakistan     border     area,               arrangements should be made for  determination               and demarcation of the border in that area;               NOW, THEREFORE, the two Governments agree that               the following action shall be taken in  regard               to the said area               Article 1:               There  shall be an immediate  cease-fire  with               effect from 0030 hours GMT on 1 July 1965.               Article 2               On the cease fire               (i)   All   troops   on   both   sides    will               immediately begin to withdraw;               (ii)  This  process will be  completed  within               seven days;               (iii) Indian  police  may then,  reoccupy  the               post at Chhad Bet in strength no greater  than               that employed at the post on 31 December 1964;               (iv)  Indian and Pakistan police may patrol on               the tracks on which they were patrolling prior               to   1  January  1965,  provided  that   their               patrolling  win not exceed in  intensity  that               which they were doing prior to 1 January  1965               and during the monsoon period will not  exceed               in  intensity  that done  during  the  monsoon               period of 1964;               (v)   If patrols of Indian and Pakistan police               should   come  into  contact  they  will   not               interfere  with each other, and in  particular               will  act  in accordance with  West  Pakistan-               India              border ground-rules  agreed               to in January 1960;               (vi)  Officials  of the two  Governments  will               meet immediately after the cease-fire and from               time to time thereafter as may prove desirable               in  order to consider whether any  problems               arise in the implementation of the  provisions               of paragraphs               (iii)to (v) above and to agree on the  settle-               ment of any such problems.               262               Article 3               (i)   In view of the fact that               (a)   India   claims   that   there   is    no               territorial   dispute  as  there  is  a   well               established boundary running roughly along the               northern edge of the Rann of Kutch as shown in               the  pre-partition  maps, which  needs  to  be               demarcated.on the ground.               (b)   Pakistan claims that the border  between               India  and Pakistan in the Rann of Kutch  runs               roughly  along the 24th parallel as  is  clear               from several pre-partition and  post-partition               documents  and therefore the dispute  involves               some 3,500. square miles of territory.               (c)   At  discussions in January 1960, it  was               agreed  by  Ministers of the  two  Governments               that  they  would each  collect  further  data               regarding  the  Kutch-Sind boundary  and  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 46  

             further discussions would be held later,  with               a  view  to arriving at a settlement  of  this               dispute;  as soon as officials  have  finished               the task referred to in article 2 (vi),  which               in  any case will not be later than one  month               after  the  cease-fire, Ministers of  the  two               Governments will meet in order to agree on the               determination  of the border in the  light  of               their respective claims, and the  arrangements               for  its demarcation.  At this meeting and  at               any  proceedings before the Tribunal  referred               to  in  article  3(ii) and  (iv)  below,  each               Government will be free to present and develop               their case in full.               (ii)  In the event of no agreement between the               Ministers  of  the  two  Governments  on   the               determination  of  the  border  being  reached               within two months of the cease-fire, the.  two               Governments  shall,  as contemplated,  in  the               Joint  Communique  of 24 October,  1959,  have               recourse to the Tribunal referred to in  (iii)               below for determination of the border, in  the               light of their respective claims and  evidence               produced  before  it and the decision  of  the               Tribunal  shall be final and binding  on  both               the parties.               (iii) For   this   purpose  there   shall   be               constituted, within four months of the  cease-               fire  a Tribunal consisting-of three  persons,               none  of  whom would be a national  of  either               India or Pakistan.  One               member  shall be nominated by each Govern  and               the  third member, who will be  the  Chairman,               shall   be   jointly  selected  by   the   two               Governments.  In the event of the two  Govern-               ments failing to agree on the selection of the               Chairman  within  three months  of  the  cease               fire, they shall request the Secretary-General               of   the  United  Nations  to   nominate   the               Chairman.               (iv)  The decision of the Tribunal referred to               in (iii)above shall be binding on both Govern-               ments   and  shall not be  questioned  on  any               ground whatsoever.  Both Governments undertake               to  implement the findings of the Tribunal  in               full as quickly as possible and shall refer to               the  Tribunal  for decision  any  difficulties               which   may   arise  between   them   in   the               implementation  of these findings.  For  that               purpose  the  Tribunal shall remain  in  being               until  its findings have been  implemented  in               full. The cease-fire came into effect as provided in Article 1  of the Agreement. As a result of this agreement the Government of India  nomi- nated  Ambassador Ales Bebler, Judge of  the  Constitutional Court  of Yugoslavia, the Government of Pakistan  nominated’ Ambassador Nasrollah Entezam,of Iran and former President of the General Assembly of the United Nations.  The two Govern- ments  having  failed  to  agree on  the  selection  of  the Chairman  of  the  Tribunal, the  Secretary-General  of  the United  Nations, under the power reserved  by  sub-paragraph (iii) of Article 3 of the Agreement, nominated Judge  Gunnar Lagergren, now President of the Court of Appeal for  Western Sweden.   In the course of the hearing a compromise  on  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 46  

procedure for the demarcations of the boundary was  settled. Memorials,   Counter-Memorials  and  Final  Memorials   were submitted along with numerous Maps, and documents.  The oral hearings began on September 15, 1966 and continued with some breaks till July 14, 1967.  During the hearing about  10,000 pages  of minutes and Verbatim Records were made  and  about 350 maps were exhibited. At  an early stage in the hearing Pakistan raised the  ques- tion  that  the dispute be decided ex aequo  et  bono  which request  was  opposed by India.  The Tribunal did  not  find that  the Agreement of June 30, 1965 authorised it  ’clearly and  beyond  doubt  to adjudicate ex aequo  et  bono’.   The parties  did  not confer this power by a  Special  Compromis even thereafter. The case  on the part of India was pro pounded with the  aid of map A which was a mosaic of Indian Maps B-44, B-37, B-19, 264 and B-20.  Pakistan claimed the boundary as marked on Map B. The award has delineated the boundary in Map C. Maps A  and B and C form part of the Award.  In describing the matter in dispute the Tribunal observed: India claimed that               "the  Tribunal determine the alignment of  the               entire  boundary  between  West  Pakistan  and               Gujarat  from  the  point at  which  the  blue               dotted  line meets the purple line  in  Indian               Map  B-44  in the west  to  the  North-Eastern               Trijunction  in the east as it appears in  the               Indian  Maps B-44, B-37, B-19 and  B-20  where               the correct alignment is shown by  appropriate               boundary symbols."               The Government of Pakistan claimed that               "The   Tribunal  determine  that  the   border               between  India and Pakistan is that  which  is               marked with green-yellow, thick broken line in               the Pakistan Claim Map               It  is  common ground  that  the  Gujarat-West               "Pakistan  boundary stretches from the,  mouth               of the Sir Creek in the west to a point on the               Jodhpur  boundary  in the east.   The  Parties               agree   that  the  Western  Terminus  of   the               boundary  to be determined by the Tribunal  is               the point at which the blue dotted line  meets               the purple line as depicted in Indian Map B-44               and the Pakistan Resolution Map, and that  the               Eastern  Terminus  of the same boundary  is  a               point  situated 825.8 metres below pillar  920               on   the  Jodhpur  boundary  as  depicted   in               Pakistan Map-137."               "This  agreement  leaves out  of  the  matters               submitted  to the Tribunal the portion of  the               boundary  along  the  blue  dotted  line,   as               depicted  in Indian Map B-44 and the  Pakistan               Resolution Map, as well as the boundary in the               Sir Creek.  The blue dotted line is agreed  by               both  Parties  to form  the  boundary  between               India and Pakistan.  In view of the  aforesaid               agreement,  the  question concerning  the  Sir               Creek  part  of the boundary is  left  out  of               consideration."               The  dispute thus remained with regard to  the               boundary   outside  these   agreements.    The               Tribunal   described  this  dispute   in   the               following words               "From  the  Western  Terminus,  the   boundary               claimed  by India takes off to the  north  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 46  

             that claimed by               265               Pakistan  to the south; and from  the  Eastern               Terminus, the boundary claimed by India  takes               off  to  the  south-west  while  the   boundry               claimed by Pakistan turns south-east.               Both  parties agree that  before  Independence               the  boundaries between the Province of  Sind,               on the one hand, and one or more of the Indian               States  on the other hand, were  conterminous.               Therefore, in the disputed region, apart  from               India  and  Pakistan there is no  other  State               that does or could have sovereignty.  There is               between  India  and  Pakistan  a  conterminous               boundary  today, whether or not there  was  at               all times a conterminous boundary between Sind               and the Indian States.               Pakistan  contends that, should  the  Tribunal               find that the Province of Sind and the  Indian               States  were not fully conterminous, then  the               area between Sind and these States would be an               "undefined area", falling outside the scope of               the Indian Independence Act, 1947.  In such an               event, the conterminous boundary between India               and  Pakistan would have to be  determined  by               the  Tribunal  on  the  basis  of  rules   and               principles applicable in such circumstances.               Pakistan adds that the evidence produced by it               in  this case is in support of  its  principal               submission, although some of it could also  be               used in support of its alternative submission.               Both  parties  agree that the Rann was  not  a               "tribal area" as defined in Section 311 of the               Government of India Act, 1935.               Each party states that the boundary claimed by               it  is the traditional,  well-established  and               well-recognised boundary." Pakistan thus claimed in addition to the establishment of  a median line roughly along the 24th parallel, what it  called the  upper lands in dispute and the northwestern part of  it which  it  called ’the jutting  triangle’.   These  included Dhara  Banni, Chhadbet, Pirol Valo Kun, Kanjarkot,  Vighokot and  Sarifbela  and these were said to be not  part  of  the Rann.   India on the other hand stated that the  Rann  means the  Rann lying to the east of the vertical line and to  the south of the horizontal line as depicted in Map A.  Pakistan maintained  that the Rann lay to the east of what  was  once known  as  the Khori river and that the lands were  part  of Sind and referred to the same as ’the delta lands’. L7sup.  CI/69-18                             265 266 The  above  in  brief  is the, outline  of  the  dispute  as presented  to  the  Tribunal.  Although  the  AWard  of  the Tribunal  it before us it was necessary to make  this  brief mention because we are required t"o reach a decision whether this was a clear case of cession of territory following the, award,  which  it  is claimed makes  it  incumbent  for  the executive  authority  in  India to obtain  the  approval  of Parliament by suitable amendment of our Constitution, before effectuating the Award. The Tribunal was not unanimous in its decision.  Judge  Ales Bebler  accepted almost in its entirety the claim of  India. Ambassador  Nosrollah  Entezam upheld the  Pakistani  claim. The Chairman then delivered his opinion.  On the propounding

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 46  

of  his  opinion  Ambassador Entezam  gave  his  opinion  as follows Opinion of Mr. Entezam               "In an     early   stage  I  considered   that               Pakistani had made out a  clear  title to  the               northern half of the am shown in    the survey               maps  as Rann.  I have now  had the  advantage               of   reading  the  opinion  of   the   learned               Chairman,  and in the light of it I concur  in               and  endorse  the  judgment  of  the   learned               chairman.               The Tribunal thereupon ruled thus :               "   The alignment of the boundry described  in               the  opinion of the chairman and  endorsed  by               Mr.   Entezam   has  obtained   the   required               majority.    It  is  therefore  the   boundary               determined by the Tribunal.               The  Chairman  prefaced  his  conclusions   by               observing               "For  the  reasons  now given,  and  with  due               regard  to what is fair and reasonable  as  to               details I conclude oft the great issue  before               me   that  the  boundary  between  India   and               Pakistan  lies as follows.  Reference is  made               here to the Award Map (Map C).  Because of the               imprecise topographical features in the region               and  the impossibility of  exactly  delimiting               many  acts of State authority,,  the  boundary               must  sometimes be represented by  approximate               straight lines." The Chairman then indicated the exact location of the  boun- dary  determined by him which was also delineated by him  on the  Map C. The new boundary begins at the northern  tip  of the  Khori Creek and after going straight up  north  reaches the   mainland  of  Sind  and  then  follows   roughly   the configuration  of the land till it comes south of  Rahim  ke bazar. It thus follows Erskines Survey.  Thereafter  instead of  following  the mainland it dips to the South  East  just South of Sadariajagot and then                             267 goes up North West to join the maintained and to follow  the boundary  symbols.  In the triangle, so formed  is  situated the  Kanjarkot area which is the first limb of the  disputed territory  brought to the fore before us.   After  following the  line of the mainland and the existing boundary  symbols the new boundary again dips to the ’South East to a point  a little  north of the 24th parallel and runs parallel  to  it thus   embracing   Dharabani  and  Chhadbet   to   Pakistan. Thereafter it goes north to join the main land of Sind again and  follows the boundary symbols which it follows  till  it reaches  the  Nagar  Parkar  area.  This  is  a  kind  of  a peninsula jutting to the South.  On the West and East  sides of  Nagar Parkar there are two narrow but deep inlets.   The new  boundary  instead  of running along the  banks  of  the inlets  jumps  across  the  two  inlets  at  their  southern extremities,  thus including them in Pakistan.  The  inlets, therefore,  are the fourth and fifth limbs of  the  disputed territory of India which the petitioners claim has been lost to  India  by the Award.  The new boundary  thence  proceeds along  the mainland till it reaches the demarcated  boundary at the Jodhpur and from where the boundary is not in dispute just  as the boundary from Sit Creek to Khori Creek has  not been, in dispute. In  drawing up the border the Tribunal based itself on  much historical  matter and old maps.  In the opinions  of  Judge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 46  

Ales Bebler and the Chairman (Ambassador Entezam  concurring with  the  Chairman)  this  historical  material  has   been differently  interpreted but we are not concerned  with  it. The reference  was also not decidedas  a   cartographic dispute.It was settled   by an ad hoc award.No      special reasons were given by the  Chairman why he included 350  sq. miles  in pakistan when he dipped:the boundary to the  South into  the Rann of Kutch except when he came to-consider  the question of, the two inlets on the two sets of Nagar Parkar. In this connection he observed:               "The  two deep inlets on either side  of  Naga               Parkar   will  constitute  the  territory   of               Pakistan.   Al.  ready in.  1855,  the  Deputy               Commissioner  of Thar Parkar pointed out  that               if  these inlets were to be  considered  Kutch               territory.               (a)glance at the map will show that  Parkar               would   be   a   peninsula   almost   entirely               surrounded  by  Kutch  territory.   The  Kutch               State could erect fortifications and establish               Custom  houses at places situated  many  miles               within  the  district for  instance  close  to               Verrawah,  or  on  some of  the  roads  which,               crossing  inlets  of the Rann, lead  from  one               part of this district to another. (Pak.   Doc.               D. 9).               268               In  my  opinion  it would  be  inequitable  to               recognise  these inlets as foreign  territory.               it   would  be  conducive  to   friction   and               conflict.   The  paramount  consideration   of               promoting  peace and stability in this  region               compels the recognition and confirmation  that               this territory, also be regarded as such.  The               points,  where the boundary will thus cut  off               the two inlets are these :               At the westerns inlet, the boundary will leave               the  boundary symbols indicated on Indian  Map               B-34 at the point marked thereon as "26", more               precisely where the cart track is indicated as               departing  from  the  edge of the  Rann  in  a               southeasterly   direction.   This   point   is               indicated as Point "L" on Map C. on the  other               side  of  the inlet, the point  will  be  that               where  the camel track is indicated on  Indian               Map  B-34 to reach the edge of the Rann;  that               point  is  indicated as point "M"  on  Map  C.               Between Points "L" and "M", the boundary shall               be a straight line.               The  boundary will cross the eastern inlet  at               its  nar-rowest  point  in  a  straight   line               between Points ’N" and "O" marked on Map C."               In  straightening the line to avoid  a  jagged               boundary  the  Chairman  gave  the   following               reason               "The  boundary  marked by  symbols  along  the               outer  edges of the peninsula of Nagar  Parkar               and  up  to the Eastern Terminus is  a  jagged               one.    As   such   it   is   unsuitable   and               impracticable  as an  international  boundary.               The   boundary   shall  accordingly   lie   in               conformity with the depiction on Map C between               the  outer  points on jutting-out  tongues  of               land  from  Point "M" and  until  the  Eastern               Terminus, marked as "ET" on Map C.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 46  

             At  no point. between the two  Terminii  shall               the   alignment  of  the  boundary  as   above               described  be  such  as to  include  in  India               territory not claimed by India, as defined  by               the depiction of India’s claim line on Map A.               It  might be added that the boundary  proposed               by  me  for  the greater part  of  its  length               roughly  coincides with the boundary  proposed               by my learned colleague, Mr. Bebler." This in brief is the decision of the Tribunal.  We now  pro- ceed to the consideration of the ’Matters before us. There  are seven parties before us seeking to  restrain  the Government of India from making over the areas of Kanjarkot,                             269 Dharabanni Chhadbet and the two inlets to Pakistan by  sheer executive act and insist that the necessary change can  only be effected by a constitutional amendment of the territories of  India  as  indicated in the  Constitution.   It  may  be Pointed  Out that none of the petitioners contends that  the Award should be rejected. This is as it should be, India was voluntarily  a party to an agreement pledging its honour  to respect   the   Award.    According   to   J.   H.   Rolston (International Arbitrations from Athens to Locarno)  pacific settlement of international disputes through a binding award on  the  basis  of an undertaking  voluntarily  accepted  is founded  on  the same principles as are to be found  in  the concept  of Arbitrations in Municipal Law.  The  history  of such arbitrations begins in modem times from the Jay  Treaty between  Great Britain and the United States of  America  of November  19,  1794 to settle the  boundary  disputes  after Independence  in  1776)  through  Mixed  Commissions.    The Commissions  settled the exact position of the Sainte  Croix River and the decision was regarded by both sides "as  final and  conclusive so that the same shall never  thereafter  be called  in  question  or  made the  subject  of  dispute  or difference  between  them." The rules of  such  arbitrations were  settled  by the Alabama Arbitrations in 1871  and  the basis of the rules is the maxim Pacta Sunt Servanda.  Indeed the Hague Convention of 1907 (Art. 37) contained the rule "Recourse  to  arbitration implies an engagement  to  submit loyally to Awards." There  have been innumerable arbitrations  between  nations. Several  books  contain Surveys of  these  arbitrations  and awards.   Stuyt lists 407 between 1794 and 1938 and  writers like  Moore, La Fontaine, Lapradelle, Darby etc.  have  made other  compilations,  the  most  complete  being  by  Moore. Nantwi  brings  the  list  down  to  1967  and  also   lists separately  the  awards which were not  complied  with.   An examination  of such awards only reveals that  generally  an award  is  not  accepted when the terms  of  submission  are departed  from or there are fatal omissions,  contradictions or obscurities or the arbitrators substantially exceed their jurisdiction.   None of these factors obtains  here.   Since the award has been accepted by our Government it is binding. The parties also do not want that it be rejected.  The  only question  raised  in  these  matters is  how  it  is  to  be implemented. Before  we  deal with the problem we wish to  say  something about the standing of the petitioners since it appears to us that  most of them have no direct interest to  question  the action  of Government or to raise any controversy  regarding the implementation of the Award. Before  the hearing commenced we questioned each  petitioner as  to  the foundation of his claim.   We  discovered that ,most  of the petitioners had no real or apparent  stake  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 46  

the areas 270 now declared to be Pakistan territory.  These persons  claim that  they  had  and  still  have  the  fundamental   rights guaranteed  to them by Art. 19 (1) (d) (e) and (f), that  is to say, the right to travel, to reside or settle down, or to acquire, and hold property in these areas.  None of them has so   far  made  any  move  in  this   direction  but   their apprehension  is that they will be deprived of these  rights in the future.. This our judgment, is too tenuous a right to be  noticed by the court in administering the law and  still less in enforcing fundamental rights.  When we  communicated our view at  an earlier hearing, some more petitioners  came forward  Mr. Madhu Limaye puts forward the supporting   plea that he had attempted to penetrate this area to  reconnoiter possibilities   for  settlement,          but   was   turned back.   In  this  way he claims that  he  had  attempted  to exercise  his  fundamental rights and they  were  infringed. Another party claims to have had a lease of grass lands some ten  years ago in this area and he is now to be deprived  of the  right  to obtain a  similar lease. Lastly  one  of  the parties put forward the plea that  he lives in the adjoining territory  and  thus  has  interest  in    the   territories proposed to be ceded to Pakistan. These petitioners too have very slender rights  if at all. The only  person  who  can claim deprivation of fundamental rights isMr.       Madhu Limaye, although in his case also the        connectionwas temporary and almost ephemeral. However, Wedecided to hear him  and  as  we  were  to  decide  the  question  we  heard supplementary arguments from the others also to have as much assistance  as  possible.   But we are not to  be  taken  as establishing  a precedent for this Court which  declines  to issue  a writ of mandamus except at the instance of a  party whose  fundamental  rights are  directly  and  substantially invaded or are in imminent danger of being so invaded.  From this  point  of  view  we  would  have  been  justified   in dismissing  all petitions except perhaps that of  Mr.  Madhu Limaye.   We  may now proceed to the  consideration  of  the rival contentions. The petitioners attempt to establish that this territory  is a   part  of  India  and  has  always  been  so   from   the establishment of the two dominions, that India has exercised effective  administrative control over it and  that.  giving up,  a  claim to it involves a cession of  Indian  territory which  can only be effected by a  constitutional  amendment. As  to the details of the steps which, in the,  petitioners’ view  establish these facts, we shall come later.   This  in very brief is the gist of the petitioners’ case.  The  reply on  behalf of the government of India is equally brief.   It is  that  no, cession of territory is  involved,  since  the boundary  was always uncertain owing to the shifting  nature of  the sea and sands and that the effective  administrative control  amounted  to  no more than  establishing  a  police outpost  with a personnel of 171 persons for watch and  ward and that too after the exchange of                             271 Diplomat  Notes  began  and that the  dispute  concerns  the settlement  of  boundary which was uncertain.   It  is  thus contended that the true areas of Pakistan and India have now been  demarcated  without  cession of  what  may  be  called undisputed Indian territory.  According to the Government of India  the  Award itself is the operative treaty  and  after demarcation  of  the boundary it will only be  necessary  to exchange  letters recognising the established  border.   The case lies within this narrow compass.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 46  

Before  we deal with the points in dispute and  them  relied upon by the rival parties in support thereof we wish to  say a few words on the implementation of treaties in general and arbitration awards in boundary disputes in particular.   The practice of countries is different but the diverse  possible approaches to the question appear from an examination of the practice obtaining in the United States, France, the  United Kingdom  and  in British India.  An   examination  of  these practices  will  enable us to see how the, matter is  to  be viewed  in this case and in context of our Constitution  and the existing rulings of court. A  treaty  really  concerns the political  rather  than  the judicial wing of the State.  When a treaty or an award after arbitration  comes into existence, it has to be  implemented and  this  can  only  be  if  all  the  three  branches   of Government,  to wit, the Legislature, the Executive and  the Judiciary,  or any of them, possess the power  to  implement it. if there is any deficiency in the constitutional  system it  has to be removed and the State must equip  itself  with the,  ’necessary power. in some jurisdictions the treaty  or the compromis read with the Award acquires fun effect  auto- matically in the, Municipal Law, the other body of Municipal Law notwithstanding.  Such treaties and awards are self-exe- cuting’.   Legislation may nevertheless be passed in aid  of implementation but is usually not necessary. In  the United States of America a treaty concluded  with  a foreign State by the, President of the United States  alone, without  the  consent of the Senate,, is not,  according  to their Constitution, binding upon the Nation and the  foreign power  derives  no  rights  under it (See  Mc  Nair  Law  of Treaties p. 80 quoting from Crandall : Treaties, Making  and Enforcement chapter XIV).  As Chief Justice Taft puts it : a treaty is the supreme law and a treaty may repeal a  statute and  vice  versa.   It is only when the terms  of  a  treaty require  that  a  law must be passed that it has  to  be  so passed : Foster v. Nielsen (2 Peters 253) See also Dickinson : Law of Nations 1057. The position regarding the United States is quite clear.  In other  nations  different practices exist.   In  the  French Constitution of the 4th October, 1958 (Title VI) Article  52 enables the 272 President  to  negotiate  and  ratify  treaties  and  he  is informed  of the negotiation of any international  agreement not subject to ratification.  Article 53 names the  treaties that require ratification by law.  They, inter alia  involve the cession, exchange or addition of territory.  They  take effect  only  after having been ratified  or  approved.   No cession, exchange or addition of territory is valid  without the consent of the populations concerned.  However it is not laid  down  how  consent is to be  obtained.   Treaties or agreements  regularly  ratified or approved have,  from  the time of publication, an authority superior to that of  laws, provided,  in the case of each agreement or treaty, that  it is  applied  also by the other party (Article 55).   If  the Constitutional  Council  consulted by the President  of  the Republic,  the  Prime Minister or the  President  of  either assembly,  has  declared that  an  international  obligation includes   a   clause   contrary   to   the    constitution, authorisation  to ratify or approve it may be accorded  only after  revision  of  the  Constitution  (Article  54).   The Constitution  thus  makes provision for  all  contingencies. Even  though  the  Kings  of  France  had  power   expressly conferred by the Constitutional Charter of 1830, the  French Jurists  denied the jurisdiction and power to the  King  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 46  

code territory. The   English   practice,  has  like   all   other   British Institutions,   :grown  with  time.   Blackstone   has   the following remark :               "Whatever contracts he (the sovereign) engages               in, no other power in the kingdom can  legally               delay, resist or annul."               Kent  in  his Commentaries (Vol.  1  p.  175,               10th Edn.) says               "the  power  competent to bind the  nation  by               treaty  may  alienate the  public  domain  and               property by treaty." Forsyth in his Opinions gives the reason that if the  Nation has conferred upon its supreme executive without reserve the right of making treaties, the alienation is valid because it is  then made by the reputed will of the  Nation.   England, however,, soon began to make a distinction between territory ceded  as a free gift in time of peace without a treaty  and that  ceded  as  a  result of a war.   Forsyth  asked  the question  whether  the  Crown had  the  ,power  to  alienate British territory by treaty, not following the dose of a war as  for instance, by a commercial treaty and  answered  that the proposition seemed questionable.  He observed:               "I  should doubt very much whether the  Crown,               without  the  authority of  Parliament,  would               have  the  legal power to cede by  treaty  the               Channel  Islands to France, there having  been               no war, and the cession not being made as part               of the adjustment of a quarrel between the two               countries."                             273 Without  a  treaty the power to cede territory  in  time  of peace  was  always denied.  Forsyth cites Grotius  (de  jure Belli  et Pacis Vol. 11 c. 6. ss. 3-8) Puffendorf Vol.  viii C. 12, Vattel Vol.  1 C. 20  s. 224, c. 21 s. 260, Livy Vol. IV c.. 2 s. 1 1 and Phillimore Part III c. 14 ss. 261, 262. At  the, time of the cession of East Florida to  Spain  Lord Loughborough maintained that the Crown possessed no preroga- tive  to cede British Territory to a foreign  State  without authority  of Parliament but Lord Thurlow (Lord  Chancellor) said  that this was based on ’the lucubrations and  fancies’ of  foreign writers which he rejected.  However Britain  was then at war with Spain and the cession was under a treaty of peace.  In 1863 the House of Commons debated the transfer of Ionian Islands.  Lord Palmerston. observed               "But   with  regard  to  cases  of   territory               acquired by conquest during war, and not ceded               by treaty, and which are not therefore British               freehold,  and all possessions that have  been               ceded  by  treaty and held as  possessions  of               British  Crown, there is no question that  the               Crown  may  make  a  treaty  alienating   such               possession without the consent of Parliament." Lord  Palmerston  cited the examples  of  Senegal,  Minorce, Florida and Isles of Banca. (See Hansard Part: Debates  Vol. CLXIX  p.  230-231).  These were however  cessions  made  by treaties of peace at the end of wars. Lord Mc Nair gives the settled law of modem times.   Accord- ing  to  him  in  the  United  Kingdom  the  concurrence  of Parliament  must always be obtained except in a  very  small number of cases.  He opines that if the courts are  required to  assist  in the implementation, a law must  obviously  be found for courts act only in accordance with law.  If a  law is  obligatory obviously Parliament must have a say  because no law can be passed except by Parliament.  However, even if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 46  

a  law be required, and yet the Crown enters into a  treaty, the courts take the act as final unless a law stands in  the way.  In other words unless there be a law conflicting  with the treaty, the treaty must stand.  In this connection it is profitable  to  read what Lord Phillimore (then  Sir  Robert Phillimore) said in the Parliament Belge case(1).  That case was  reversed on appeal in 5 P.D. 197 but on another  point. See also Walker v. Baird(2) .As was observed by Lord  Atkin in  Attorney  General  for Canada v.  Attorney  General  for Ontario(3)  the position may be summed up thus : there is  a distinction between (1) the formation and(2)         the performance  of the obligation.  The first is  an  executive act  the second a legal act if a law is required. (1)  4 P.D. 129.    (3) [1937] A.C. 326 at 347. (2) [1892] A.C. 491. 274 The  performance then has no force apart from a law that  is to  say unless Parliament assents to it and Parliament  then accords  its  approval  to the, first  executive  act.   The treaties  created by executive action bind the,  contracting parties  and,  therefore,  means must  be  found  for  their implementation within the law.  This is illustrated by a few examples.    The   Executive   authority   in   the    State cannot.acquire  new  rights against the citizens  by  making treaties  with  foreign powers.   Therefore  whenever  peace treaties  involved municipal execution many statutes had  to be  passed.   Again new offences cannot be created  by  the, more fact of conventions on entered into with other  powers. Both  principles obtain in India.  The Indian  statute  book contains numerous examples of conventions which have led  to the  passing  of  Municipal Laws.  The  Civil  Court  Manual devotes  many  pages to such statutes, too  numerous  to  be mentioned  here  and  the penal law of  India  also  affords examples  One  such is the law against  obscenity  in  India which was the direct result of 4 convention.  In the  United Kingdom  there  is  almost  a  binding      convention  that cession of British territory requires approval of Parliament in  the form of a statute but it must clearly have been  the freehold of Britain. But  even  here Parliamentary sanction is not  required  for cession  or abandonment of territory acquired previously  by conquest   or  cession  or  otherwise  wrongly  in   British possession.   The  cases  of abandonment  by  the  Crown  of sovereignty  over  the various mandated territories  are  in point.   Many  of  them  were given up  without  an  Act  of Parliament.   The protocol respecting the  boundary  between Tanganiyika territory and the Belgian mandated territory  of Ruonda-ulandi, on August 5, 1924 involving a small territory was  never  enacted  as a law.  In 1925 it  was  ruled  that cession  of.  territory which never formed part of  a  self- governing  dominion was a royal prerogative although it  was desirable that approval of Parliament be obtained.  A giving up  of doubtful claims to territory is not considered to  be of  the same standing as a cession of territory known to  be that  of  the  Crown.   The  tendency  however  is  to  have parliamentary  sanction  when British  territory  is  ceded. This  is provided in the very treaty itself and it  is  made subject to Parliament’s ;approval.  The present practice  of Crown is to obtain either prior sanction of Parliament or to seek  ratification  after it.  This is done  by  laying  the treaty on the, table of both Houses for 21 days, after which time it is treated as ratified.  Although the practice since 1924  is to submit treaties to Parliament by laying them  on the  table of the two Houses (known as the  Ponsonby  rule), there  have been in the past numerous instances of  treaties

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 46  

implemented  by the Crown without reference  to  Parliament. These  exceptions  were  connected  with  circumstances   of convenience and public policy that is to say to avert a war, for consideration of territory or for rectification of boun-                             275 daries.  A few examples of such action in time of peace  may be given.  In 1824 in treaty with Netherlands, Great Britain ceded  Sumatra and the settlement of Bencollen.  In  1859-60 the  Bay Islands were transferred to Honduras.  In  1867  in treaty with Netherlands an exchange of territory took place. The  Orange River Territory was transferred by an  order  in Council.   In  1697 by the Treaty of  Reyswick  Hudson Bay territory  was  given back to the French.  In  1813  by  the Treaties  of Stockholm the Island of Guadelope was ceded  to Spain.   A cession of Mosquito Shore was made to  Nicaragua. All those were in time of peace and without Any reference to Parliament Hertslett’s Treaties. In  British India section 113 of the Indian Evidence Act  of 1872 created a presumption in favour of such transfer  which on the issue of  a notification was to be held by courts  to be valid.  In 1872 Scidia was given the pergannah of Broach. In  1803  Pudokottah  State  was  ceded  the  Districts   of Kullanelly  in Tanjore. In 1806 Sambalpur was given  to  the Mahara  a  of Nagpur and in 1871 Scidia  was  given  certain villages in Jhansi. [See Aitchoson’s tre es Vol. 3 (p. 331), Vol.  4  (p.  214)  and  (99)].   All  these  were   without intervention of Parliament. It will thus appear that there is no settled practice.   The least that can be said is that cession in time of war in the United  Kingdom can always be made by the Crown but in  time of  peace  it  can only be made  by  Parliamentary  sanction whether  obtained directly or under the Ponsonby  rule.   In British India parliamentary sanction was not necessary.   In Damodar  Gordhan  v. Deoran Kanji(1) it was laid  down  that "the  general  and abstract doctrine laid down by  the  High Court  at Bombay that it is beyond the power of the  British Crown without the consent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British  Courts  in India, in time of peace,  to  a  foreign power, is erroneous." The question is one of domestic as well as International Law and  we have been at pains to set down the practice of  some countries and that obtaining in British India before dealing with  this problem in the light of our Constitution and  the facts  obtaining  here.   It  will  appear  from  the  other analysis  that the United States of America and  the  French Constitutions  have  a clear guidance on  the  subject.   In England,  as no written Constitution exists,  difference  is made between treaties of peace when the Crown acts  without, obtaining  the approval of Parliament and cession  in  peace time  when  such  approval  must be  had.   But  even  so  a distinction  is  made  in the case  of  British  possessions abroad  and the United Kingdom.  Again a difference is  made in cases involving minor (1)  [1876] 1 Appeal cases, 332. 276 changes   where  boundaries  have  to  be  ascertained   and adjusted.   In British India advantage was taken of  Section 113  of  the  Evidence Act in cases of  cessions  to  Native States,  Prince or Ruler.  That section is now obsolete  and has been omitted in Burma and Ceylong but is still borne  on our  statute, although no longer required.  We may now  pass on to the Indian Constitution and the facts of this case  to see how it views this matter. The  Constitution did not include any clear direction  about

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 46  

treaties  such  as is to be found in the  United  States  of America  and  the French Constitutions.  Article  I  of  the Constitution  defined the territory of India.   It  provides that India shall be a Union of States.  In the  Constitution as originally enacted First Schedule classified States as A, B,  C and D. After the Seventh Amendment in 1956 it  is  now provided  that the States and the territories thereof  shall be  as specified in the First Schedule.  Clause (3) ,of  the First Article was also amended by the Seventh Amendment  but as  the  amendment  is not material we may  read  here  that clause as it is today.  It reads :               "(3) The territory of India shall comprise--               (a)   the territories of the States;               (b)   the  Union territories specified in  the               First Schedule; and               (c)   such   other  territories  as   may   be               acquired.’ Article 3 enables Parliament by law to alter the  boundaries of  the  existing States and it includes the  power  (b)  to increase  the area, of any State (c) diminish the  area  of any State or to alter the name of any State.  Then there are items  Nos. 14 and 15 in the Seventh Schedule which  provide as follows               "14.   Entering into treaties  and  agreements               with  foreign  countries and  implementing  of               treaties,  agreements  and  conventions   with               foreign countries.               15. War and peace." These  entries  enable laws to be enacted on  these  topics. They are to be read with Article 253 which occurs in Part XI (Relations  between  the  Union and the  States)  Chapter  1 (Legislative  Relations)  and  is  headed  Distribution   of Legislative Powers, it provides.               "253.    Notwithstanding   anything   in   the               foregoing   provisions   of   this    Chapter,               Parliament  has power to make any law for  the               whole  or any part of the territory ,of  India               for  implementing  any  treaty,  agreement  or               convention with any other country or countries               or any                                    277               decision made at any international conference,               association or other body." In point of fact it adds nothing to the legislative  entries 14  and 15 above quoted but confers exclusive power of  law- making  upon".  Parliament.  As the marginal note  correctly represents  the  idea  underlying the Article,  it  may  be, read--Legislation   for  giving  effect   to   International agreements-and the article only says that Parliament is  the authority   to  make  such  laws.   In  addition  to   these provisions  we  must also take into  account  Article  73(1) which lays down the Executive power of the Union.  It reads               "73(1)  Subject  to  the  provisions  of  this               Constitution, the executive power of the Union               shall extend-               (a)   to  the  matters with respect  to  which               Parliament has power to make laws; and               (b)   to   the   exercise  of   such   rights,               authority and jurisdiction as are  exercisable               by  the Government of India by virtue  of  any               treaty or agreement               Provided that the executive power referred  to               in subclause (a) shall not, save as  expressly               provided  in this Constitution or in  any  law               made  by  Parliament, extend in any  State  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 46  

             matters with respect to which the  Legislature               of the State has also power to make laws." The question is if a law and or a constitutional  amendments is- necessary for implementing the Award. Before we deal with the facts of the case before us and the. arguments for and against executive act ion we may  consider here a few cases of this Court in which a problem of cession of Indian, Territory had previously arisen because both side seek to apply those cases to the facts here. It  is convenient to view these cases in the order in  which they  were  decided  In  Midnapore  Zamindary  Co.  Ltd.  v. Province  of  Bengal and others(1), this  question  was  not directly  in  issue.   There  were  observations  which  are pertinent and must be borne in mind. It  was observed that disputes as to boundaries between  two independent  States  cannot  be the subject  of  inquiry  of municipal  courts exercising jurisdiction in  either  State. The  Federal Court relied upon the statement of the  law  by Oppenheim.  (International Law, 7th Edn., Vol.  1,  p.  408) that  "state territory is an object of the Law  of  Nations, because the latter recognises the supreme authority of every State within its territory".  The Federal Court quoted  with approval  the  dictum  of Farwell, J.  in  Foster  v.  Globe Venture Syndicate Ltd. (2) which reads: (1) [1949] P. R. 309.           (2) L.R. [1900] 1 Ch. 811. 278               "Sound Policy appears to, me to require that I               should  act in unison with the  Government  on               such  a  point  as that.   Assuming  that  the               Foreign   Office   have   already    satisfied               themselves  that the territory in question  is               within  the  dominion  of  Morocco,  and  have               applied. to the Sultan of Morocco for  redress               in  any  given  matter,  it  would  surely  be               improver  that 1, sitting here as a  Judge  of               the  High Court, should, in the face  of  that               art  of Her Majesty, hold as a matter of  fact               that the territory in question was not  within               the  dominion  of the Sultan  of  Morocco.   I               should be contravening the act of Her  Majesty               acting  as  a Sovereign in a matter  which  is               within the cognizance of Her Majesty’s Foreign               Office." This statement of the law had the full approval of  Viscount Finlay  in  Duff Development Co. v.  Kalintan  Government(1) where   consultation  between  Court  and   Government   was advocated.   This  ,case  does not help  us  to,  solve  the problem but it shows that Municipal Courts should be slow to interfere. A  similar  question  like the present arose  In  re  :  The Berubari  Union and Exchange of Enclaves (2) on a  reference by the President of India to this Court of certain questions concerning  the Berubari Union and the exchange  of  certain enclaves.  As a result of the Radcliffe Award’ dated  August 12, 1947 Berubari Union was included- in West Bengal and was treated  as such.  Certain boundary disputes, having  arisen from   interpretation  of  the  Radcliffe  award,  the   two Dominions referred the dispute to another Tribunal presided, over by Lord Justice Algot Bagge for decision.  The BaggeTribunal gave its award on 26 January, 1950.  Subsequently the question  of Berubari Union was raised by Pakisthan in  1952 and  on    September 10’ 1958 the Prime Ministers  of  India and  Pakistan   entered into an agreement between  East  and West  Bengal, which involved transfer of Berubari  Union  to Pakistan,.  Simultaneously an agreement to exchange  certain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 46  

enclaves  took  place  also.  This is  known  as  the  Indo- Pakistan Agreement.  Section 290 of the Government of  India Act  1935 had provided, that His Majesty could by  Order  in Council  increase  or diminish the area of any  Province  or alter the boundary of any Province and the  Extra-Provincial Jurisdiction  Act of 1947 gave the necessary power  in  that behalf.  The question arose whether the inauguration of  the Constitution  had led to any change.  Three  questions  were referred to this Court by the President.  They were               (1)Is any legislative action necessary  for               the  implementation of the Agreement  relating               to Berubari Union ? (1) [1924] A.C. 797. (2) [1960] 3 S.C.R. 250. 279               (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 to  or               in the alternative ?               "(3)  Is  a  law of  Parliament  relatable  to               article 3 of, the Constitution sufficient  for               implementation  of the agreement  relating  to               Exchange of Enclaves or is an amendment of the               Constitution in accordance with article 368 of               the Constitution necessary for the purpose, in               addition or in the alternative."               This Court gave the following answers               Q? 1. Yes.               Q?  2.  (a) A law of Parliament  relatable  to               Art.   3   (it  the  Constitution   would   be               incompetent;               (b)   A  law of Parliament relatable  to  Art.               368  of  the  Constitution  is  competent  and               necessary,                (c)A  law of Parliament relatable  to  both               Art. 368 and Art. 3 would be necessary only if               Parliament   chooses  first  to  pass  a   law               amending  Art. 3 as indicated above;  in  that               case  Parliament  may have to pass  a  law  on               those finds under Art. 369 and then follow  it               up with a law relatable to the amended Art.  3               to implement the               Q.  3.  Same as answers (a), (b), and  (c)  to               Question 2." The  contention  on behalf of the Union was that  the  Indo- Pakistan   tan  Agreement  regarding  Berubari  Union   only ascertained  and delineated the exact boundary and  did  not involve  alteration  of  territorial  limits  of  India   or alienation or cession of Indian territory.  The exchange  of enclaves  was  also described as a part of the  general  and broader agreement about Berubari Union and incidental to it. According   to  the  Union  Government  the  Indo   Pakistan Agreement could be implemented by executive  action  alone without Parliamentary legislation whether with or without  a constitutional amendment.  Reliance was placed on the obser- vations of Mukherjee, C.J. in, Rai Sahib Ram Jawaya Kapur v. The State of Punjab (1) where dealing with the limits within which   the Executive Government can function,  the  learned Chief Justice said               "that  the executive function  comprised  both               the determination of the policy as well as the               carrying  it into execution.   This  evidently               includes the initiation of legisla-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 46  

(1)  [1955] 1 S.C.R. 225. 7 280               tion,  maintenance of order, the promotion  of               social and economic welfare, the, direction of               foreign  Policy,  in fact the carrying  on  or               supervision  of the general administration  of               the State." The  Court  posed  the question  whether  the  Indo-Pakistan Agreement had purported to settle, a boundary dispute or  to divide  the  disputed territory half and  half.   The  Court found  the  latter  as  there was no  attempt  in  the  said Agreement  to read or interpret the Awards previously  given in that dispute.  This Court rejected the contention that it was  a  pure  ascertainment  of  boundary  between  the  two Countries.   On the other hand the  Indo-Pakistan  Agreement ceded  territory of India to Pakistan.  This conclusion  was reached in respect of the Berubari Union as well as the  en- claves.  Since the Berubari Union was treated after the  two Awards  as part of India its cession would have altered  the content   of  Entry  13  of  the  First  Schedule   to   the Constitution and an amendment was held necessary.  Once  the argument  that this was a case of marking a boundary on  the surface of the earth was rejected this Court considered  the steps  necessary to make cession of Indian territory.  As  a result  the  9th Amendment to the Constitution  was  enacted from December 28, 1960. The  matter came again in another form before this Court  in Ramkishore  Sen  and Others v. Union of  India(1)  which  is known  popularly  as the Berubari II case.  It  was  a  writ petition filed in the Calcutta High Court and the appeal was brought to this Court.  It wag filed by six residents of the District of Jalpaiguri.  The complaint was that the  village of Chilhati (among others) was being transferred to Pakistan as a result of the Agreement between India and Pakistan  and the  action  was  illegal.  The main  point  argued  in  the petition  was  that Chilhati was not covered either  by  the Indo-Pakistan Agreement or the 9th Amendment.  According  to those petitioners it was not competent to transfer  Chilhati without  first amending the Constitution.  The  case  before the High Court and in this Court was that a part of Chilhati village  situated in Debiganj Police Station was a  part  of Chilhati in Jalpaiguri District.  This’ Court observed :               "There is no doubt that if a small portion  of               land  admeasuring  about 512  acres  which  is               being  transferred  to Pakistan is a  part  of               Chilahati situated within the jurisdiction  of               Debiganj   Thana,  there  can  be   no   valid               objection  to  the proposed transfer.   It  is               common ground that the village of Chilahati in               the  Debiganj  Thana  has  been  allotted   to               Pakistan;   and   it  appears   that   through               inadvertence,  a part of it was not  delivered               to  Pakistan on the occasion of the  partition               which followed (1)  [1966] 1 S.C.R. 430.                             281               the  Radcliffe  Award.  It is  not  surprising               that   in  dividing  territories   under   the               Radcliffe  Award, such a mistake  should  have               occurred;  but it is plain that what the  res-               pondents  now propose to do is to transfer  to               Pakistan  the  area in question  which  really               belongs to her." It  was then contended that even though that part  ought  to have  been  originally  transferred to  Pakistan  under  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 46  

Radcliffe Award, it having become part of India could not be ceded  without the procedure laid down in Berubari  I  case. As  this  portion  was being administered as  part  of  West Bengal  under Entry 13 in the First Schedule it was part  of the  territory which immediately before the commencement  of the Constitution was West Bengal.  This Court observed :                "It is true that since this part of Chilahati               was not transferred to Pakistan at the  proper               time,  it  has been regarded as part  of  West               Bengal  and  administered as  such.   But  the               question  is  :  does this  fact  satisfy  the               requirement of Entry 13 on which the  argument               is,  based?   In  other  words,  what  is  the               meaning  of the clause "the territories  which               were being administered as if they formed part               of  that Province’; what do the words "as  if"               indicate in the context ?" Explaining  the  phrase  ’as if they  formed  part  of  that Province’  this  Court  looked  into  the  history  of  this Province.   Clauses  (a)  and (b) of section  290-A  of  the Government of India Act 1935" may be reproduced               "Administration of certain Acceding States  as               a Chief Commissioner’s Province or as part  of               a Governor’s or Chief Commissioner’s  Province               :-               (1)Where    full    exclusive    authority,               jurisdiction and powers for and in relation to               governance  of any Indian, State or any  group               of   such  States  are  for  the  time   being               exercisable  by the Dominion  Government,  the               Governor-General may by order direct--               (2)that  the State or the group  of  States               shall  be administered in all respects  as  if               the State or the group of States were a  Chief               Commissioner’s Province; or               (3)that  the State or the group  of  States               shall  be administered in all respects  as  if               the  State or the group of States formed  part               of  a Governor’s or a  Chief  ’Commissioner’s               Province specified in the Order."               The Court concluded thus :               "In  view of this  constitutional  background,               the words "as if" have a special significance.               They refer to territories which originally did               not belong to West 7Sup.CI/69-19               7 Sup .CI/69-19               282               Bengal but which became a part of West  Bengal               by reason of merger agreements.  Therefore, it               would be impossible to hold that a portion  of               Chilahati    is   a   territory   which    was               administered  as  if  it was a  part  of  West               Bengal.  Chilahati may have been  administered               as  a  part  of  West  Bengal;  but  the  said               administration  cannot attract the  provisions               of Entry 13 in the First Schedule, because  it               was  not administered as if it was a  part  of               West Bengal within the meaning of that  Entry.               The  physical fact of administering  the  said               area was not referable to any merger at all it               was  referable to the accidental  circumstance               that the said area had not been transferred to               Pakistan  as  it should have been.   In  other               words,  the clause "as if" is not intended  to               take   in  cases  of  territories  which   are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 46  

             administered with the full knowledge that they               do  not  belong to West Bengal and had  to  be               transferred  in due course to  Pakistan.   The               said   clause  is  clearly  and   specifically               intended to refer to territories which merged               with the adjoining States at the crucial time,               and so, it cannot include a part of  Chilahati               that *as administered by West Bengal under the               circumstance  to which we have just  referred.               That is why we think Mr. Mukerjee is not right               in contending that by reason of the fact  that               about   512  acres  of  Chilahati   were   not               transferred  to Pakistan and continued  to  be admin istered  by the West Bengal  Government,               that area ’became a part of West Bengal within               the meaning of :Entry 13 Schedule 1. The  West               Bengal  Government ,knew all the time that  it               was  an  area which belonged to  Pakistan  and               which  had to be transferred to it.  That  is,               in  fact, what the respondents are seeking  to               do;  and so, it would be idle to contend  that               by  virtue  of the accidental fact  that  this               area  was administered by West Bengal, it  has               constitutionally and validly become a part  of               West  Bengal itself.  That being so,there  can               be  no  ,question  about  the   constitutional               validity of the proposed transfer of this area               to Pakistan.  What the respondents are seeking               to  do  is to give to  Pakistan  what  belongs               under the Radcliffe Award." These  two  cases  did not really decide the  point  we  are called  upon to decide.  The first Berubari Case dealt  with transfer of territory which was de facto and de jure Indian territory and there-fore as the extent of Indian territories as defined in Art.  I read with the 1st Schedule was reduced a  constitutional amendment was held necessary.  The  second case  concerned  territory  which ,was de  facto  under  the administration by India but being de jure that of Pakistan, transfer of that territory which was not a part                             283 of Indian territory was held not to require a constitutional amendment.   Neither  case  dealt with  a  boundary  dispute although  in  the  first case the case  from  Australia  was distinguished  on  the ground that that case  concerned  the demarcation  of boundaries pure and simple.  However it  was not said that for adjustment of boundaries a  constitutional amendment  was not required.  Neither case adverted  to  the practice  of Nations particularly Britain, nor attempted  to interpret  the  relation  of Articles 1,253 and  73  of  the Constitution read with Items 14 and 15 of List I of Schedule 7. The only thing that can be said is that this Court leaned in  favour of a constitutional amendment in all cases  where admitted  territory of India was being ceded but  not  where the cession was of territory of a foreign power but de facto in possession of India.  On which side must a border dispute fall  is  the question for our  decision.   The  petitioners claim  that  this  will  fall in the  dictum  of  the  first Berubari  Case.   The  Union Government claims  that  it  is analogous  to the case of Chilahati in the  second  Berubari Case. The  question is one of authority.  Who in the State can  be said   to   possess  plenum  dominion   depends   upon   the Constitution  and the nature of the adjustment.  As  to  the necessity  of it, the Courts must assume it as a  matter  of law.  It is scarcely to be thought that the validity of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 46  

action  can  ever  depend  upon the  judgment  of  a  court. Therefore  all argument that the action of Government to  go to arbitration was not proper must cease.  Unlike the United States  of America where the Constitution is defined in  ex- press  terms,  we-in our Country can only go  by  inferences from our Constitution, the circumstances and the precedents. The  precedents of this Court are clear only on  one  point, namely,  that no cession of Indian territory can take  place without a constitutional amendment.  Must a boundary dispute and  its  settlement by an arbitral tribunal be put  on  the same  footing.  An agreement to refer the dispute  regarding boundary  involves the ascertainment and  representation  on the  surface  of  the earth a  boundary  line  dividing  two neighbouring countries and the very fact of referring such a dispute  implies that the executive may do such acts as  are necessary for permanently fixing the boundary.  A settlement of  a  boundary dispute cannot, therefore, be held to  be  a cession of territory.  It contemplates a line of demarcation on  the surface of the earth.  It only seeks to reproduce  a line,  a statutable boundary, and it is so fixed.  The  case is one in which each contending state ex facie is  uncertain of its own rights and therefore consents to the  appointment of  an  I  arbitral  machinery.   Such  a  case  is  plainly distinguishable from a case of cession of territory known to be  home  territory.  The argument that if power  to  settle boundaries be conceded to the Executive, it might cede  some vital  part of India is to take an extreme view  of  things. The  same  may even be said of Parliament itself but  it  is hardly to be imagined 28 4 that  such gross abuse of power is ever likely.   Ordinarily an adjustment of a boundary which international Law  regards as  valid between two Nations, should be recognised  by  the Courts and the implementation thereof can always be with the Executive  unless a clear case of cession is  involved  when Parliamentary  intercession  can be expected and  should  be had.    This   has  been  the  custom   of   Nations   whose constitutions   are  not  sufficiently  elaborate  on   this subject. The  argument  on behalf of the petitioners is  intended  to prove  that the areas of Kanjarkot, Dharabanni and  Chhadbet and  two  inlets on either side of Nagar Parkar  are  Indian territory.   From  this it follows,  that  a  constitutional amendment  as was laid down in the first Berubari case is  a condition  precedent  for the implementation of  the  Award. The  argument, therefore, follows closely the  reasoning  in that  case.   It is contended that Article 1 read  with  the First Schedule to the Constitution made Kutch into a part  C State  and under the second paragraph of Part C itself  its, territory  comprised all territories which by virtue  of  an order  made  under section 290A of the Government  of  India Act,  1935, were immediately before the commencement of  the Constitution,  being  administered as if they were  a  Chief Commissioner’s  Province of the same name.  We-  have  shown that  the  meaning of the phrase ’as if they  were  a  Chief Commissioner’s Province of the same name’ must be understood as  was,  laid down in the second  Berubari  case.   Learned counsel attempted to challenge that decision but we consider ourselves  bound  by that decision.   The  petitioners  must establish that this area was a part of Kutch. The  petitioners,  therefore, trace the  history  of  Kutch. Kutch  is described in the White Paper on Indian  States  as follows :               "  1  18.  Another important State  which  was               taken  over under Central  administration  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 46  

             Kutch.   This State has an area of 17,249  Sq.               miles  of which 8,461 miles is inhabited by  a               population  of a little over half  a  million.               The  remaining  area is occupied  by  what  is               known as the Rann of Kutch which is covered by               water  during most part of the year.  In  view               of the geographical situation of the State and               the   potentialities   of   this   area,   the               development   of   which   will   require    a               considerable  amount  of  money  as  well   as               technical assistance, which neither the  State               by  itself  nor the State of  Saurashtra  with               which  it was possible to integrate the  State               could  provide, it was decided that  the  best               solution  for this State would be to treat  it               as   a   Centrally  administered   unit.    An               Agreement  (Appendix  XXIX)  was   accordingly               signed  by the Ruler on 4th May, 1948 and  the               administration  was  taken  over  by  a  Chief               Commissioner   on  behalf  of   the   Dominion               Government on 1st June, 1949.- 285 This only gives the area but not the boundaries.  The  Kutch Merger agreement is like any other merger agreement and  was executed  by the Maharao of Kutch on May 4, 1948.  It  gives no  clue  to the boundaries and also leaves the  matters  at large.   Immediately  after Kutch was taken  over  by  Chief Commissioner on June 1, 1949.  On July, 29, 1949 the  States Merger  (Chief  Commissioner’s Provinces)  Order,  1949  was passed.  It provided inter alia :               "2  (1) (c) the parts of States  specified  in               the  Second  Schedule to this Order  shall  be               administered in all respects as if they were a               Chief  Commissioner’s Province, and  shall  be               known as the Chief Commissioner’s Province  of               ’Kutch."               The   parts  of States comprising  Kutch  were               given as follows               "(i)  The State of Kutch, excluding  the  area               known as Kutchigar h situate in Okhamandal.               (ii)The   part  of  the  United   State   of               Saurashtra  which  is comprised in  the  Adhoi               Mahal  of  Morvi,  consisting  of  the   seven               villages   Adhoi,  Dharna,   Gamdan,   Halara,               Lakhpat, Rampur and Vasatava."               Here again the boundaries are not mentioned. All  that we know of Kutch from these documents is  that  it had  an  area of 17,249 Sq. miles of which 8,788  Sq.  miles were inhabited. Obviously this is most inconclusive from our point  of  view since the White Paper is  completely  silent about boundaries. The later history of Kutch is also not helpful.  On November 1, 1956 Kutch became a part of Bombay State.  The States Re- organisation  Act referred to ’the existing State of  Kutch’ which  did  not advance matters any  nearer  certainly  than before.   On May 1, 1960 the Bombay Reorganisation Act  made the  area  known  as Kutch a part of the  State  of  Gujarat State.  Therefore none of these documents is of any help  in determining  boundaries  or  that the  disputed  areas  were definitely a part of India. There  is also no evidence of administration in Dhara  Banni and Chhadbet.  No revenue administration, establishment  of Courts, offices, schools etc. is proved. The Chairman  found some  evidence  of  administrative  control  of  Sind  which contradicted  the Indian case.  The evidence of  leases  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 46  

held  to  be  contradicted  by  other  evidence.   The  1957 elections  show  that  a  polling  station  was  located  at Chhadbet but the voters were the personnel of the Watch  and Ward  force.   Indeed the census of India (1961)  shows  the same  171  persons  who  belonged  to  the  Watch  and  Ward personnel.   Kanjarkot had almost no evidence in its  favour and Mr. Madhu Limaye frankly admitted this fact., The  other petitioners gave. no evidence about it. 7Sup.Cl/69-20 286 No doubt, Pandit Jawaharlal Nehru on March 3, 1956 and  Shri Lal  Bahadur Shastri on May 11, 1965 asserted that the  area belonged  to India but that was only a statement and  cannot be held to be of an evidentiary character.  We were bound to make such a statement if we were at all to lay claim to  it. After all the other side was making a similar claim and even a  short skirmish also; took place.  This cannot be  treated as definite evidence. In support of the case the petitioners took us still further back into history.  The definition of boundaries of Sind  in 1935  by the Surveyor General was in general terms.  It  did not  show whether Kanjarkot, Dhara Banni and  Chhadbet  were excluded  from Sind altogether.  ’Me Index Map  prepared  at the  time  was tot annexed to the order  in  Council.   This index map was relied upon by Ambassador Ales Bebler who gave opinion  for  us but was not accepted by  the  Chairman  and Ambassador Nasrollah Entezam.  This was probably because the Mosaic  Map which is map A on which India rested  the  claim did not show a continuous boundary along the entire  length. The  statistical abstracts of India and Pakistan which  were sought  to supplement the Map before us only give areas  and not boundaries and are, therefore, inconclusive. The  claim  of  Kutch State in 1914  when  it  attempted  to enlarge  the  Rann  of Kutch at the cost  of  Sind  was  not successful.  A compromise was the foundation of ’a  friendly understanding’  and not the settlement of a  boundary.   The Macdonald  line  that  was then  determined  represents  the uncontested portion of the boundary.  It was then  attempted to  get  a confirmation of the ’Kutch-Sind boundary  but  no boundary  was settled.  It appears that the Rann itself  was treated  as excluded from Kutch.  Indeed the  Government  of Bombay continued to so regard it. The   fight  before  the  Tribunal,  therefore,,  became   a cartographic  tussle.  Over 350 maps were exhibited  by  the parties  and many of these maps conflicted.  Maps have  been used  in such cases but the source of information on  which the   map  is  based  is  always  doubtful  and   maps   are contradictory.  One cannot go by one set only.  In this view of  the  matter our reliance on Maps B32, 34,35, 36  and  37 became  ineffective.  The disputed area was about 3,500  Sq. miles.   Out  of this about 350 sq. miles were  included  in Pakistan. We are not sitting in appeal over the Award of the Tribunal. Our  interpretation  of  the Maps and facts  of  history  is really not called for. All that we can determine is  whether there is concrete and solid evidence to establish that these areas belonged to India.  If we could reach this  conclusion there  may  be  something  to be  said  applying  the  first Berubari  case.   Otherwise we must hold that  there  was  a disputed boundary and this was the occasion for marking  out the final boundary on the surface of the earth. in 287 our opinion this is what was done.  We cannot go entirely by what of the India pressed before the Tribunal.  That is only one  art matter, The conditions existing prior to the  Award

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 46  

were:               (a)   that there was a break of hostilities;               (b)   that then there was a cease-fire because               the dispute was to be decided by arbitration,               (c)   that   both  sides  put  forward   their               claims,               (d)  that  there  was  no  clear  evidence  of               demarcation  of a boundary acceptable  to  the               parties now or in the past,               (e)   that   the  claim Map of India  did  not               show  a  continuous  boundary  along  all  the               border,               (f)   that  the area is in different state  at               different  seasons in the year, for  part  of.               the  year it is water   and for the  remaining               part  it is land.  While it is the  former  it               may  be  regarded as a part of  the  Rann  and               while  it is land it may well be  regarded  as               part of Sind. Viewed from this angle the contention in this case comes  to this : Does India cede undisputed Indian territory or is  it the  settlement  of  a disputed boundary?   With  regard  to Kanjarkot  which is to the south of Rahim ka Bazar  no  case was  made out at all except assertions that it  is  Indian territory in which at least Mr. Madhu Limaye (who argued the case very fully and with considerable ability) did not join. With regard to Mora Banni and Chhadbet it is ’clear that Map A  (the  claim map of India) does not show the  border  from Manjeet where the boundary determined by the Tribunal leaves the  mainland to a point just west of the, point  where  the boundary   determined  by  the  Tribunal  again  joins   the mainland.   To the south of this missing boundary lie  Dhara Banni  and Chhadbet.  It is, therefore, clear that at  least in  this  part, India was not certain of the  boundary.   No doubt some other maps show a continuous boundary even  there but  other negative it. In other words the, exact  location, of  the  boundary  was an open question.   Dhara  Banni  and Chadbett  are contiguous with the mainland in  some  seasons although   they   are,  inundated  at   times   and   become indistinguishable from the Rann.  In these circumstances the location  of the boundary at the southern fringe  of  Dhara- Banni and Chhadbet was no more than fixing a trim  boundary, according to the Tribunal.  It was well within the terms of reference  and  the decision being a true marking put  of  a disputed boundary does not amount to cession of these  three areas so as to attract a constitutional amendment. As  regards  the two inlets, their area is said to  be  less than   25   sq.  miles.   They  are  extremely   narrow   at their,southern extremities and really represent indentations in land.  At the narrow 288 points    roads run 1 across them  and  they  are Pakistan’s roads.  Treating the inlets as ’inland waters, the  Tribunal determined  the  boundary in such away as to  give  them  to Pakistan.   The  reasons  given by  the  Tribunal-have  been reproduced above by us.  We cannot say that this will mean a cession   of  Indian  territory.   There,  was   a   genuine dispute,regarding  the title to these inlets whatever  India may  have thought about them.  The decision of the  Tribunal is a decision on a disputed boundary and does not attract  a constitutional amendment. The  only  evidence was this area (which is other  wise  un- inhabited)  was  in  parts occupied by  an  Indian  security force.   The existence of these Watch and Ward officers  or the  establishment of a polling booth for them  at  election

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 46  

time  cannot connote administration such as would make  them territory  of India.  The Diplomatic Notes began soon  after the  establishment of the two Dominions and  the  occupation may  have meant de facto control but there was no  proof  of de jure occupation or any other administration. Sovereignty  over an area is always a matter  of  inference. As Judge Huber puts it in the Island of Palmas case               "manifestations  of  territorial   sovereignty               assume, it is true, different forms, according               to  time and space.  ’Although  continuous  in               principle,. sovereignty cannot be exercised in               fact  at  every moment on every  point  of  a.               territory.      The     intermittence      and               discontinuity compatible with the  maintenance               of  the right necessarily differ according  as               inhabited    or   uninhabited   regions    are               involved........... (Award  dated  April  4,  1928  :  2  INT.ARB.  AWARDS  867) Garrisoning  of an area (a point noted in the  International Court of Justice in 1953 in, the Minquiers and Ecrehos case, 1.  C.J. Reports page 78) may be one kind of evidence.   But this  applied  ’to both sides.  Unless they  displayed  real existence  of sovereignty over the area, none could be  said to be in occupation de jure. Hance     the propounding of so so many maps and documents.  If we were sitting in appeal on the award, of the Tribunal we might have formed a  different opinion of  of the material but we are not.   The  fact remains that India undertook  to  be  bound  by  the  award pledging,  die  national honour and we  must  implement  the award.  The only question is as to the steps to be taken. On  the  whole,  therefore,  we are  of  opinion  that  this reference began in a boundary dispute after open hostilities and  was decided as such.  In which case it cannot  be  said that  there  will be a cession of Indian territory  and  the rule earlier laid down by us applies‘ if no’  constitutional amendment  is  required the. power of  the  Executive  which extends to matters with respect to which 289 Parliament  has  power  to make laws, can  be  exercised  to correct  boundaries  now that they have  been  settled,  The decision  to  implement the Award by  exchange  of  letters, treating the Award as an operative treaty after the boundary has  been marked in this area, is within the  competence  of the  Executive  wing  of Government  and  no  constitutional amendment is necessary. The petitions and the appeals fail and will be dismissed but there will be no order about costs. Shah, J. I agree with the learned Chief Justice. The  controversy raised in this group of writ petitions  and appeals  lies  within a narrow compass  whether  the  award, dated  February  19,  1968  of  the  Indo-Pakistan   Western Boundary.    Case   Tribunal  may  be   implemented   by   a constitutional amendment and not otherwise.  The claimants-I use that expression to refer compendiously to the appellants and  the petitioners-urge that the award may be  implemented only  by an amendment modifying the relevant  provisions  in Schedule 1 to the Constitution, because in giving effect  to the  award of the Tribunal, cession of Indian  territory  is involved,  and. the executive is incompetent to cede  Indian territory  without the authority of a constitutional  amend- ment.   The  Union of India contends that the  Award  merely fixes  or  demarcates  the boundary  between  the  State  of Gujarat  in  India and West Pakistan regarding  which  there were disputes and much friction, and by the Award no cession of Indian territory is contemplated, and for implementing it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 46  

amendment of the Constitution is not needed. The  Great Rann of Kutch lies between the mainland  of  Sind (which  is now part of Pakistan) and the mainland of  Kutcha district of the State of Gujarat.  It has a peculiar surface :  it  is marshy land : for about four months  in  the  year large  parts of the Rann are covered with the waters of  the Arabian Sea rushing through the Khori Creek.  It is  however not  fit for navigation.  During the rest of the year it  is muddy or dry land, but not dry enough for farming.  From the very  nature of the terrain, the boundaries of the Rann  are shifting,  its  extent depending upon the  violence  of  the natural elements in different years.  The northern  boundary of the Rann has, on account of its inhospitable terrain  and nomadic  population  on  the  fringe  with  no  prospect  of cultivation,  remained ill-defined.  Between 1816  and  1819 the Indian State of Kutch passed under the domination of the East  India Company and the integrity of its  territory  was guaranteed by the East India Company by the treaty of  1819. In  1843 Sir Charles Napier annexed the territory  of  Sind, and  made  it into a Governor’s’ Province, which  was  later turned  into  a Division of the Province of  Bombay.   Kutch continued to be ruled by the 290 Maharao,  the British authorities having posted a  Political Agent at the capital of the, State. In  1855  the  Department of Survey  of  India  commenced  a revenue,  and topographical survey of the Province of  Sind. The  survey, called the Macdonald Survey, was  completed  in 1870,  and survey maps were prepared and published in  1876. It is not clear whether the southern boundaries of the  Sind villages  shown  in the maps were village boundaries,  or  a boundary  conterminous  between the territory  of  Sind  and Kutch State. The  next survey was undertaken under Major Pullan  in  1879 and was completed in 1886.  Under this project survey of the State  of  Kutch was undertaken.  The northern  boundary  of Kutch State roughly tallied with the Macdonald alignment  of the  Sind  boundary.  The relevant maps  were  published  in 1882. Another  survey of a part of the boundary on the  Sind  side was  undertaken in 1904-05 by C. F. Erskine.  The  alignment of  the  boundary with a few corrections  tallied  with  the Macdoland  alignment.   This  survey was intended  to  be  a checking survey and related to the western region  extending up to a point near Rahim ki Bazar. About the year 1907-08 the Commissioner of Sind raised  cer- tain  disputes  relating to encroachments on  the  territory under  his  administration  by the Maharao  of  Kutch.   The Government of India made an enquiry and a resolution,  dated February  24,  1914,  was.issued by the  Government  of  the Province  of Bombay, of which Sind was then a Division.   By the  resolution  the,  disputed area was divided  by  a  new alignment which was partly identical with the claim made  by the  Kutch State along the Sir Creek from its mouth  to  its extremity and then slightly departed from it.  In the  other regions  the alignment of the Macdonald Survey  was  adhered to.   To  the  resolution was annexed a  map  on  which  the rectified  boundary was shown.  A Secretary in  the  Foreign Department  of  the Government of India recorded  that  "the Government of India observe with satisfaction that the  dis- pute  between the Sind authorities and the Kutch Durbar  has been  settled by a compromise agreeable to both parties  and are pleased to accord their sanction to the rectification of the,  boundary  line proposed in paras 9 and  10".   To  the letter  of  the  Secretary  to  the  Government  of  Bombay,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 46  

Political  Department, consent to the rectification  of  the boundary was evidenced by a letter of the Maharao under  his own signature.  Pursuant to this resolution in 1924, pillars were  fixed  up to a point known as  the  Badin-Ja-jato-Rann tri-junction. In 1935 the new Province of Sind was constituted.  By the government(Constitution of Sind) Order, 1936, it                             291 simply  provided, therein that-"In the Act and  this  Order, Sind means the territory known at the date of this Order, as the  Division of Sind, and the boundaries of  that  Division shall be the boundaries of Sind." It  was originally intended to set out by a Schedule to  the Order the boundary of Sind, and an Index Map was prepared by the  Surveyor General for that purpose.  By a  communication from  the  Secretary of State for India in Council,  it  was recommended  that  a  Schedule to  the  Order  defining  the boundary was not necessary and the Governor-General accepted that suggestion. The  fourth survey-called the Onmaston Survey-was  commenced in  1938-39 : it was intended to be a survey of the  Eastern part  of the Tharparkar District.  This survey  adopted  the alignment  of the Macdonald Survey in that region showing  a conterminous boundary between Sind and the States of Western India (now within the State of Gujarat). With the enactment of the Indian Independence Act, 1947  (10 &  1 1 Geo.  VI c. 30) the paramountcy of the British  power lapsed,  and  the  two independent Dominions  of  India  and Pakistan were carved out with effect from the appointed day. By  s. 2(2) of the Act the territories of Pakistan  were  to be- (b)the  territories which, at the date of the  passing  of this Act, are included in the Province of Sind .... and (c) On May 4, 1948, the State of Kutch merged with the  Dominion of  India  and by Article 1 of the Agreement of  Merger  the Maharao  ceded to the Dominion of India full  and  exclusive authority  over  the governance of the State.   On  June  1, 1949,  the administration was taken over by the  Government of  India , and the territory was constituted into  a  Chief Commissioner’s  Province  under  s. 2(1)(c)  of  the  States Merger  (Chief Commissioner’s Province) Order, 1949.   Under the Constitution the territory became a Part ’C’ State.  Its extent  was  determined by the 2nd paragraph in Part  C  to, Schedule  1  of the Constitution as  "territories  which  by virtue of the order made under s. 290A of the Government  of India Act, 1935, were immediately before the commencement of the Constitution being administered, as if they were a Chief Commissioner’s  Province of the same name." By s. 8 (1)  (e) of the States Reorganization.  Act, 1956, the, territory  of the Part C State of Kutch was incorporated with the State of 292 Bombay,  and by s. 3 (a) of the Bombay  reorganization  Act, 1960, it was included in the newly formed State of Gujarat. From  July 1948 and onwards diplomatic notes were  exchanged between the Governments of India and Pakistan concerning the boundary  between  the  two countries  in  the  Gujarat-West Pakistan  Sector.  The dispute led to great tension  between India  and  Pakistan resulting in armed conflict  in  April 1965.   By an agreement dated June 30, 1965, the  Government of  India  and  the  Government  of  Pakistan  concluded  an agreement  For setting up machinery "for  determination  and demarcation  of  the border" in ’the  area  of  Gujarat-West Pakistan.   The  agreement  in  so far  as  it  is  relevant provides

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 46  

              Art.  1-"There shall be an  immediate  cease-               fire  with  effect from 0030 hours GMT  on  1.               July 1965.               Art. 2-.                Art. 3-(i) In view of the fact that               (a)   India   claims   that   there   is    no               territorial  dispute  as  there  is  a   well-               established boundary running roughly along the               northern edge of the Rann of Kutch as shown in               the  pre-partition  maps, which  needs  to  be               demarcated on the ground.               (b)   Pakistan claims that ’the border between               India  and Pakistan in the Rann of Kutch  runs               roughly  along the 24th parallel as is  clear               from several pre-partition and  post-partition               documents  and therefore the dispute  involves               some 3,500 square miles- of territory.               (c)               (ii)In  the event of no agreement between  the               Ministers  of  the  two  Governments  on   the               determination  of  the  border  being  reached               within  two months of the cease-fire, the  two               Governments  shall,  as  contemplated  in  the               Joint  Communique  of 24  October  1959,  have               recourse to the Tribunal referred to in  (iii)               below  for determination of the border in  the               light of their respective claims and  evidence               produced  before  it and the decision  of  the               Tribunal  shall be final and binding  on  both               the parties.               (iii)For   this   purpose  there   shall   be               constituted, within four months of the  cease-               fire, a Tribunal consisting of three  persons,               none  of  whom would be a national  of  either               India  or  Pakistan.   One  member  shall   be               nominated  by  each Government and  the  third               mem-               293               ber,  who  will  be  the  Chairman,  shall  be               jointly  selected by the two Governments.   In               the  event of the two Governments  failing  to               agree on the selection of the Chairman  within               three  months  of the cease-fire,  they  shall               request  the Secretary-General of  the  United               Nations to nominate the Chairman.               (iv)  The decision of the Tribunal referred to               in,  (iii)  above  shall be  binding  on  both               Governments,  and shall not be  questioned  on               any   ground  whatsoever.   Both   Governments               undertake  to  implement the findings  of  the               Tribunal  in full as quickly as  possible  and               shall  refer to the Tribunal for decision  any               difficulties  which may arise between them  in               the  implementation  of these  findings.   For               that  purpose  the Tribunal  shall  remain  in               being until its findings have been implemented               in full.,, The  Ministerial Conference contemplated to be held did  not take place, and the two Governments decided to have recourse to  the Tribunal to be constituted under article  3(iii)  of the agreement. A Tribunal of three members, one appointed by each  State  and the Chairman nominated  by  the  Secretary- General of the United Nations Organization was set up.   The agreement  between the two States was reached purely  as  an executive  act, and no legislative sanction was obtained  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 46  

the Government of the Union of’ India to its implementation. The  respective  claims  before the Tribunal  by  India  and Pakistan  are set out in paragraph 3 (1 ) of  the  agreement and  at pp. 7, 8 & 9 of the Introductory Part of  the  award which  apparently had the concurrence of all the members  of the  Tribunal.  On behalf of the Government of India it  was submitted  that  the  boundary lay as  detailed  in  Map  ’A annexed to the award which is a mosaic of Indian Maps  B-44, B-37,  B-19 and B-79.  It was common ground between the  two Governments   that  "the  Gujarat-West   Pakistan   boundary stretches  from the mouth of the Sir Creek in the west to  a point  on  the Jodhpur boundary in the  each.   The  Parties agree  that  the  Western Terminus of  the  boundary  to  be determined  by the Tribunal is the point at which  the  blue dotted line meets the purple line as depicted in Indian  Map B-44  and the Pakistan Resolution Map, and that the  Eastern Terminus  of  the same boundary is a  point  situated  825.8 metres below pillar 920 on the Jodhpur boundary as  depicted in  Pakistan  Map  137.  This agreement leaves  out  of  the matters  submitted  to  the  Tribunal  the  portion  of  the boundary  along the blue dotted line, as depicted in  Indian Map  B-44  and the Pakistan Resolution Map, as well  as  the boundary in the Sir Creek.  The blue dotted line is  agreed’ by  both  Parties  to form the boundary  between  India  and Pakistan.. 294 In view of the aforesaid agreement, the question  concerning the  Sir  creek  part  of  the  boundary  is  left  out   of consideration." It  was  also common ground  that  "before.Independence  the boundaries  between the Province of Sind, on the  one  hand, and  one  or  more of the Indian States  which  lay  on  the opposite  side  of the Great Rann, on the other  hand,  were conterminous.   Therefore,  in the  disputed  region,  apart from,  India and Pakistan there is no other State that  does or  could  have  sovereignty.  There is  between  India  and Pakistan a conterminous boundary today, whether or not there was  at all times a conterminous boundary between  Sind  and the Indian States." The contention raised by Pakistan was               "(a)  that during and also before the  British               period,  Sind extended to the south  into  the               Great  Rann  up  to  its  middle  and  at  all               relevant   times   exercised   effective   and               exclusive  control over the northern  half  of               the, Great Rann;               (b)that  the  Rann is  A  "marine  feature"               (used  for  want of a standard term  to  cover               the, different aspects of the Rann).  It is  a               separating  entity  tying between  the  States               abutting upon it.  It is governed by the prin-               ciples  of  the median line and  of  equitable               distribution,  the  bets  in  the  Rann  being               governed by the principle of the "nearness  of               shores";               (c)that  the whole width of the Rann  (without               being  a condominium) formed a broad  belt  of               boundary   between  territories  on   opposite               sides; that the question of reducing this wide               boundary  to a widthless line, though  raised,               has  never been decided; that  such  widthless               line would run through the middle of the  Rann               and  that  the Tribunal should  determine  the               said tine." Pakistan  accordingly  claimed  that  the  border  of   Sind

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 46  

extended up to the boundary shown by the thick green  dotted line in Map ’B’. It was agreed by both the Governments that "should the  Tri- bunal  find that the evidence establishes that the  disputed boundary  between  India  and Pakistan  lies  along  a  line different  from.  the  claim  lines  of  either  party,  the Tribunal is free to declare such a line to be the boundary. The award to be made by the Tribunal was, it was agreed,  to operate as a self-executing arrangement : it was not only to declare the boundary, but to provide for fixing its location on  site.   It was agreed between the Agents  of  India  and Pakistan that- 295 1.’The basis of demarcation shall be the alignment of the boundary as delineated by the Tribunal on maps to be annexed to  the Award.  Each Government should be supplied with  two sets of these maps duly authenticated by the Tribunal. 2. 3.The  Representatives of the two Governments shall  meet at  Delhi  not  later  than two weeks  after  the  Award  is rendered to discuss and decide upon the following matters :               (i)   The  strength  of the team. (It  is  not               possible to give the exact number of personnel               composing  the  team  at  this  stage  as  the               strength  of  the team will  depend  upon  the               alignment  of the boundary and the quantum  of               work  involved which can be  ascertained  only               after the Award is rendered).               (ii)The  design  and  specifications  of   the               boundary  pillars  and traverse  pillars,  the               number and spacing of pillars. (The design and               specifications  of the boundary  pillars  will               depend upon the alignment of the boundary  and               the nature of the terrain.  The pillars may be               of cement concrete, stone or masonry according               to the requirements               (iii)Detailed  operational  instructions  for               the   guidance  of  the  field  staff.   (Such               operational    instructions   have    to    be               necessarily finalised only after the nature of               the alignment is known).               (iv)Any    other   matter    which    requires               consideration for effective demarcation work. If  the Representatives of the two Governments do not  agree upon  any  of  the above  matters  either  Government  shall immediately report to the Tribunal the matters in difference for the decision of the Tribunal. 5. 6.The  first  task of the demarcation team  shall  be  to ascertain  if  any control points exist and  are  available, These  control  points  should  be  supplemented,   wherever necessary, in order to determine the pillar positions on the ground in accordance with the alignment of the boundary.  If control  points do not exist or are not available,  a  fresh series of triangulation or traverse will be carried out  and control points determined and the pillar position-,  located with the help of these points. 296 7.Simultaneously   with  the  location  of   the   pillar positions, pillars shall be emplaced at each position.  " The  award  was published by the Tribunal  on  February  19, 1968.   By  the  decision of the Chairman  of  the  Tribunal (Judge  Gunnar  Lagergren) with  whom  Ambassador  Nasrollah Entezam agreed and Ambassador Ales Babler disagreed in part, the  boundary was aligned from point W T to E T in Map  ’C’.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 46  

It is unnecessary to set out the detailed description of the boundary.   " claim of the Government of India to  the  Rann was  accepted.  The claim of the Government of  Pakistan  to approximately  3,500 square miles out of the Great Rann  was rejected  except as to 350 square miles, of which more  than 325  square miles are found beyond the Rann or on which  the Maharao had not exercised sovereign authority . The Tribunal unanimously accepted the claim that the Great Rann of  Kutch was part of the territory of the State of Kutch and is  now Indian territory.  But the majority of the Tribunal accepted the claim of Pakistan, substantially to the following  three sectors :               (1)Marginal  area south of Rahim ki  Bazar,               marked  by  B, C, D in Map ’C’,  this  may  be               called the Kanjarkot Sector;               (2)The  area  marked  in  the  Map  ’C’  by               letters  E,  F, G, H, K which  may  be  called               Dhara, Banni and Chhad Bet Sector;               (3)Two inlets which practically encircle Nagar               Parkar  which have  apparently  characteristic               features of the Rann but are still declared to               be  within the border of Pakistan  by  drawing               straight  lines from points L to M and N to  0               in Map ’C’. The reasons for declaring the first two sectors as  Pakistan territory  are set out (at p. 152 of the printed  award)  by the Chairman Judge Gunnar Lagergren as follows               "Reviewing   and   appraising   the   combined               strength  of the evidence relied upon by  each               side  as proof or indication of the extent  of               its respective sovereignty in the region,  and               comparing   the   relative  weight   of such               evidence,  I conclude as follows.  In  respect               of  those sectors of the Rann in  relation  to               which  no  specific  evidence in  the  way  of               display  of Sind authority, or merely  trivial               or  isolated  evidence of  such  a  character,               supports  Pakistan’s  claim,  I  pronounce  in               favour of India.  These sectors comprise about               ninety  per  cent of the  disputed  territory.               However,   in  respect  of  sectors  where   a               continuous  and for the region intensive  Sind               activity, meeting with no effective opposition               from the Kutch side, is established, 1. am of                                    297               the  opinion  that  Pakistan has  made  out  a               better  and superior title.  This refers to  a               marginal   area  south  of  Rahim  ki   Bazar,               including Pirol Valo Kun, as well as to  Dhara               Banni and Chhad Bet, which on most maps appear               as an extension of the mainland of Sind." About  Item (3) Judge Gunnar Lagergren was of the view  that to  prevent friction and conflict the inlets ,should not  be declared Kutch territory. The  effect  of  an international treaty on  the  rights  of citizens of the States concerned in the agreement is  stated in Oppenheim’s International Law, 8th Edn., at p. 40 thus               "Such  treaties as affect private rights  and,               generally, as require for their enforcement by               English courts a modification of common law or               of a statute must receive parliamentary assent               through  an  enabling Act of  Parliament.   To               that extent binding treaties which are part of               International Law do not form part of the  law               of  the land unless expressly made so  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 46  

             legislature."               and at p. 924 it is stated                The  binding  force of a treaty  concerns  in               principle the contracting States only, and not               their subjects.  As International Law is prim-               arily   a   law  between   States   only   and               exclusively, treaties can normally have effect               upon States only.  This rule can, as has  been               pointed   out  by  the  Permanent   Court   of               International  Justice,  be  altered  by   the               express  or  implied terms of the  treaty,  in               which   case  its  provisions   become   self-               executory.   Otherwise,  if  treaties  contain               provisions with regard to rights and duties of               the subjects of the contracting States,  their               courts, officials, and the like, these  States               must take steps as are necessary according  to               their Municipal Law, to make these  provisions               binding    upon   their   subjects,    courts,               officials, and the like."               In Wade and Phillips’ Constitutional Law,  7th               Edn., :It is stated at p. 274 :               "  At  first  sight  the  treaty-making  power               appears  to conflict with  the  constitutional               principle that the Queen by prerogative cannot               alter the law of the land, but the  provisions               of a treaty duly ratified do not by virtue  of               the  treaty alone have the force of  municipal               law.    The  assent  of  Parliament  must   be               obtained and the necessary legislation  passed               before a court of law can enforce the  treaty,               should it conflict with the existing law." 298 On  p.  275  it is stated that "treaties  which,  for  their execution  and  application in the United  Kingdom,  require some  addition to, or alteration of, the existing  law"  are treaties  which involve legislation.  The statement made  by Sir  Robert Phillimore, Judge of the Admiralty Court in  The Parlement Belge(1)-(though the ultimate decision was revised by the Court of Appeal in another point [vide (1880) 5 P. D. 197] in dealing with the effect of a "Convention  regulating Communications,by  Post" signed and ratified in  1876  which purported to confer upon Belgian mail streamers. immunity of foreign warships is appropriate :               "If the Crown had power without the  authority               of parliament by this treaty to order that the               Parlement Belge should be entitled to all  the               privileges of a ship of war, then the warrant,               which  is prayed for against her as  a  wrong-               doer  on  account  of  the  collision,  cannot               issue,  and the right of the subject, but  for               this order unquestionable, to recover  damages               for  the  injuries  done  to  him  by  her  is               extinguished.               This is a use of the treaty-making prerogative               of  the  Crown which I believe to  be  without               precedent,  and in principle contrary  to  the               laws of the Constitution." In Walker v. Baird(2) the Judicial Committee, affirming  the decision of the Supreme Court of Newfoundland, observed that the  plea of act of State raised in an action  for  trespass against  the  Captain of a British fishery  vessel  who  was authorised   by  the  Commissioners  of  the  Admiralty   to superintend  the  execution  of  an  agreement  between  the British  Crown  and the Republic of France,  which  provided

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 46  

that  no  new  lobster factory shall  be  established  on  a certain  part  of  the coast of Newfoundland  could  not  be upheld. The  Judicial  Committee in Attorney-General for  Canada  v. Attorney-General   for  Ontario  and  Others(3)  made   some observations in the context of a rule applicable within  the British Empire, which are pertinent :               "It  will  be essential to keep  in  mind  the               distinction between (1) the formation, and (2)               the    performance,   of    the    obligations               constituted  by a treaty, using that  word  as               comprising  any agreement between two or  more               sovereign  States.  Within the British  Empire               there  is  a well-established  rule  that  the               making of a treaty is an executive act,  while               the  performance of its obligations,  if  they               entail  alteration  of the  existing  domestic               law, requires legislative action.  Unlike some               other countries, (1) [1879] 4P.D.129.            (2) [1892] A.C.491. (3)  [1937] A.C. 326, 347.                             299               the, stipulations of a treaty duly ratified do               not within the Empire, by virtue of the treaty               alone, have the force of law.  If the national               executive,  the Government of the day,  decide               to  incur  the obligations of a  treaty  which               involve alteration of law they have to run the               risk of obtaining the assent of Parliament  to               the   necessary   statute   or   statutes.....               Parliament,    no,   doubt,   ....    has    a               constitutional  control over the  executive  :               but it cannot be disputed that the creation of               the  obligation.-. undertaken in treaties  and               the  assent to their form and quality are  the               function  of the executive alone.   Once  they               are  created,  while they bind  the  State  as               against   the   other   contracting   parties,               Parliament  may refuse to perform them and  so               leave the State in default." These   observations  are  valid  in  the  context  of   our constitutional   set  up.   By  Art.  73,  subject  to   the provisions  of the Constitution, the executive power of  the Union  extends  to  the matters with respect  to  which  the Parliament  has power to make laws.  Our Constitution  makes no-  provision making legislation a condition of  the  entry into  an  international  treaty in times either  of  war  or peace.   The executive power of the Union is vested in  the, President   and  is  exercisable  in  accordance  with   the Constitution.   The executive is qua the State competent  to represent the State in all matters international and may  by agreement, convention or treaties incur obligations which in international  law  are binding upon the  State.   But  the- obligations arising under the agreement or treaties are  not by their own force binding upon Indian nationals.  The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh  Schedule. But making of law under that authority is necessary when the treaty  or  agreement  operates to restrict  the  rights  of citizens  or others or modifies the laws of the  State.   If the  rights of the citizens or others which are  justiciable are  not affected, no legislative measure is needed to  give effect to the agreement or treaty. The argument raised at the Bar that power to make treaty  or to  implement  a  treaty, agreement  or  convention  with  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 46  

foreign State can only be exercised under authority of  law, proceeds upon a misreading of Art. 253.  Article 253  occurs in  Ch.  1 of Part XI of the Constitution which  deals  with legislative  relations: Distinction of  Legislative  Powers. By  Art. 245 the territorial operation of legislative  power of  the Parliament and the State Legislatures is  delimited, and  Art.  246 distributes  legislative  power  subject-wise between the Parliament and the State Legislatures.  Articles 247,  249, 250, 252 and 253 enact some of the exceptions  to the  rule contained in Art. 246.  ’Me effect of Art. 253  is that  if  a treaty, agreement or convention with  a foreign State 300 deals  with  a subject within the competence  of  the  State legislature,  the Parliament alone has notwithstanding  Art. 246(3),  the  power to make laws to  implement  the  treaty, agreement  or  convention  or  any  decision  made  at   any international  conference,  association or other  body.   In terms,  the  Article deals with  legislative  power  thereby power  is  conferred upon the parliament which  it  may  not otherwise  possess.  But it does not seek-  to  circumscribe the  extent  of  the power conferred by  Art.  73.   If,  in consequence  of the exercise of executive power,  rights  of the citizens or others are restricted or infringed, or  laws are  modified,  the exercise of power must be  supported  by legislation:   where   there   is   no   such   restriction, infringement  of the right or modification of the laws,  the executive is competent to exercise the power. It may be recalled that cl. 3 (iv) of the Agreement included a  covenant  that  the decision of  the  Tribunal  shall  be binding  on  ,both  the  Governments.   The  power  of   the executive  to  enter  into  that  covenant  cannot  also  be challenged, and was not challenged.  It was conceded that if the  contention  based on Art.. 253 was  not  accepted,  the award  of  the  Tribunal by majority of  two  (Judge  Gunnar Lagergren with whom Ambassador Nasrollah Entezam agreed) was binding upon the Government of India.  It was accepted  that as  an  international  agreement  between  the  two   States represented by their executive Governments it became binding between the two States as expressly undertaken.  No argument was urged that there exist any grounds which may justify the Union  of India from declining to implement  the  agreement. The  award  of  the Tribunal has, it  was  conceded,  to  be implemented  as  an international obligation.   Counsel  who represented  the claimants, and claimants who  argued  their cases,  before us: adopted an eminently fair  attitude. it was not  urged that the award was not binding upon the Union of India : their plea urged with moderation was that insofar as  the award affected the territorial limits of  India,  it required a constitutional amendment. It  was not suggested that apart from the claim to  exercise rights  to  move freely throughout the  territory  of  India under  Art. 19(1) (d), and to reside and settle in any  part of  the territory of India under Art. 19 (1) (e)  any  other right of any individual citizens was likely to be  infringed by  the  implementation  of the award.  The  nature  of  the terrain of the disputed territory precludes any other  claim being  made,  There  are  no  local  residents,  no  private property and no agriculture.  For four months in the year it is mostly under water, for the rest of the year it is marshy land.   But it was claimed that every individual citizen  of India is entitled to exercise the privileges under cls.  (d) and  (e) of Art. 19(1) in respect of territory  between  the boundary  shown  in  Map ’A annexed to the  award,  and  the boundary delineated by Map ’C" which represents, in the view

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 46  

of the Tribunal, the 301 border  between  the  two States, is  Indian  territory  and deprivation of the rights of the citizens under Art. 19  (1) (d) & (e) can only be achieved if the cession of what is now part  of the territory of India be ceded under the  sanction of a constitutional amendment Mr. Limaye petitioner in  Writ Petition No. 402 of 1968 claimed that he made an attempt  to enter the territory which under the award falls ’within  the Pakistan  Border, and was prevented by the  security  police from entering that area.  The only question to be determined therefore  is  whether  in  implementing  the  award, the. executive  Government  is  ceding  territory  of  India   to Pakistan. I  have set out the terms of the agreement and the  disputes raised  by the two States in some detail.  A review  of  the terms  of the agreement, the unanimous introductory part  of the  award  and the terms of the agreement relating  to  the implementation of the award and of the final award, make  it abundantly  clear that the dispute related to  the  boundary between  the  two  States : it was referred  as  a  boundary dispute, the respective claims urged were about the location of  the boundary line, and the operative part of  the  award declared the alignment of the boundary, which has under  the terms  of  the  agreement  relating  to  the  procedure  for demarcation to be filed by pillars on the alignment. Settlement  of dispute which relates to the alignment of  an undefined boundary between two States involves no cession of territory  by either State.  In the advice rendered  to  the President  in a reference made to this Court under Art.  143 in In Re : The Berubari Uninion and Exchange of  Enclaves(1) this  Court was called upon to determine the true nature  of the  agreement  between  the Prime Ministers  of  India  and Pakistan-each  Prime  Minister  acting  on  behalf  of   his Government  September  10,  1958,  for  a  division  of  the Berubari  Union in the State of West Bengal and exchange  of certain   enclaves-  and  whether  the  agreement   may   be implemented  otherwise than by a  constitutional  amendment. This  Court  held that the agreement between the  two  Prime Ministers  did not seek to interpret the Radcliffe Award  or to  determine the boundary between the two States.   It  Was agreed  by  the  two  Prime Ministers that  a  part  of  the Berubari Union which was allotted to India under that  Award and was in occupation of India was to be ceded to  Pakistan, and  enclaves within Pakistan but in occupation of India  de lure  were to be exchanged for similar enclaves of  Pakistan within  Indian territory.  This Court advised the  President that the appellant  could be implemented under the authority of  a  constitutional amendment only.  The  Parliament  then enacted  the  Constitution.  (Ninth  Amendment)  Act,  1960, assuming power to implement the agreement and the (1)  [1960] 3 S.C.R. 250. 302 two other agreements dated October 23, 1959 and January  11, 1960.   Another  matter  arising  out  of  those  agreements between  the  two Prime Ministers was  brought  before  this Court by an appeal from an order passed by the High Court of Calcutta  in  a writ petition : Ram Kishore Sen  &  Ors.  v. Union of India and Ors.(1). It was proposed pursuant to  the Constitution (Ninth Amendment) Act, 1960, to transfer, among other  territory, a part of the village of Chilahati in  the occupation of the State of West Bengal in India.  A petition filed in the High Court of Calcutta challenging the validity of  the  proposed transfer to Pakistan on  the  ground  that village  Chilahati  which was part of the  Indian  territory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 46  

could  not be transferred by the Government of  India.   The High Court of Calcutta rejected the petition.  In appeal  to this Court it was urged, inter alia, that the disputed  part of the village Chilahati though allotted to Pakistan was not delivered  to Pakistan and had become part of the  State  of West  Bengal,  because it was being administered  as  if  it formed  part  of  the territory of West  Bengal  within  the meaning  of  Entry  13  Part’A Sch.  I  as  amended  by  the Constitution  (Amendment  of the First &  Fourth  Schedules) Order-, 1950.  The Court held that the proposed transfer  of a  part of the village of Chilahati, which was  allotted  to Pakistan  under the Radcliffe Award but was  not  delivered, and continued to remain administered as a part of the  State of West Bengal,was not constitutionally invalid. In  In Re : The Berubari Union and Exchange  of  Enclaves(2) there was no question of-demarcation of a disputed  boundary :  it was a case of pure cession of Indian  territory.   Ram Kishore  Sen & Ors’ case(1) which dealt, among others,  with the  cession  of 500 acres of Chilahati village  related  to transfer  of  territory  which  though  temporarily   under. Indian  administration  had never become  Indian  territory. The principle of the First Berubari case has no  application here  and  the  principle of the  Second  Berubari  case  is against the contention raised by the claimants. But the claimants urge that by the alignment of the boundary under  the award, territory which is Indian is now  declared foreign territory, and it cannot be implemented without  the authority  of  an amendment modifying the  boundary  of  the State of Gujarat in which is now included the Rann of Kutch. Now  the alignment of the boundary under the award  deviates from the alignment claimed by the Government of India before the  Tribunal in three in ran, respects which  have  already been  set  out.   The  Tribunal  was  of  the  view,  on’  a consideration of the maps produced, that there did not exist at  any  time  relevant to the  proceedings  a  historically recognized and well-established (1)[1966] 1 S.C.R. 43O. (2) [1960] 3 S.C.R. 250. 30 3 boundary in the, three sectors.  About the Kanjarkot  Sector the Chairman observed :               "The  evidence shows that Kutch did  not  make               any  appearance in this area until  1946,  and               then  only abortive attempts were made by  the               sons of the lessee, Node Sadi Rau, to go there               in  order to collect Panchari.  They  reported               that they did not even dare to stay  overnight               in the place.  While no specific evidence  has               been  submitted  which proves  any  activities               undertaken by Sind subjects in Pirol Valo Kun,               the  reports  of the Kutch  lessees  establish               that  Sind  inhabitants  engaged  in   grazing               there."               and further observed at p. 151               "In  a  sector  bounded to the  south  by  the               southern limit of Pirol Valo Kun, not only  is               there  a  total  absence  of  effective  Kutch               activity,  but there is a consistent  exercise               of sovereign rights and duties by Sind  autho-               rities,  and activities of residents of  Sind,               in   one  instance,  taking  the  form  of   a               permanent settlement at Shakur." The territory in this sector is contiguous to and in fact is an  extension  of the mainland of Sind, and apart  from  the survey  maps  there is no evidence that it is  part  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 46  

Great  Rann of Kutch.  No serious argument was  advanced  to establish  that  on Kanjarkot, the Kutch State at  any  time exercised sovereign authority. About  the  Dhara Banni and Chhad Bet  Sector  Judge  Gunnar Lagergren observed (at p. 141)               ".....on  the  evidence on record  it  may  be               taken as positively established that, in  this               century, prior to independence, outside  Dhara               Banni  and  Chhad Bet (which will  be  treated               presently),    the   police    and    criminal               jurisdiction of Sind authorities over disputed               territory extended, in the sector between  the               eastern   loop  and  Dhara  Banni,  to   Ding,               Vighokot and Biar Bet.  There is, however,  no               evidence  which  affirmatively  proves  in   a               conclusive  fashion that the  jurisdiction  of               Sind police and Sind courts encompassed  areas               west  of  the eastern loop, or east  of  Chhad               Bet.   Conversely,  no proof is  offered  that               Kutch   either  assumed  or   exercised   such               jurisdiction  over  any part of  the  disputed               territory (leaving aside Dhara Banni and Chhad               Bet)."               He again observed (at p. 144) :               ".....I  deem  it established that,  for  well               over  one  hundred years,  the  sole  benefits               which could be derived               304               from those areas are enjoyed by inhabitants of               Sind.  It is not suggested that the grazing as               such  was subject to British  taxation.   Such               limited evidence as there is on record  seems,               however,  to justify the assumption  that  the               task  of  maintaining law and order  was  dis-               charged  by the Sind authorities-, it  is  not               even  suggested that the authorities of  Kutch               at any time viewed such a task as forming part               of   their  duties.........   Whatever   other               Government   functions  were   required   with               respect to these outlying grazing grounds,  on               which  herds of cattle were from time to  time               shepherded,  were  apparently  undertaken   by               Sind.  Thus, the births, deaths and  epidemics               occurring  there were recorded by  the  taluka               office  in Diplo.  It is not shown that  Kutch               at any time established a thana on Chhad Bet."               He finally observed (at p. 151)               "The   remaining   sector  within   the   area               described  above in which authority,  in  this               instance  exclusively  for the  protection  of               activities  of private, individuals, is  shown               to have been displayed by Sind authorities  in               a manner which is not sporadic but  consistent               and effective, is Dhara Banni and Chhad Bet.               As  stated earlier, the activities  undertaken               by   Kutch   in   these   areas   cannot    be               characterised  as  continuous  and   effective               exercise  of jurisdiction.  By contrast 9  the               presence of Sind in Dhara Banni and Chhad  Bet               partakes  of  characteristics  which,   having               regard to the topography of the territory  and               the   desolate  character  of   the   adjacent               inhabited  region, come as close to  effective               peaceful occupation and display of  Government               authority as may reasonably be expected in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 46  

             circumstances.   Both the inhabitants of  Sind               who openly used the grazing grounds for over               one  hundred  years and the  Sind  authorities               must have acted on the basis that Dhara  Banni               and Chhad Bet were Sind territory." The  claimants  urged  that the  territory  in  this  Sector belonged to the Kutch State and that claim was supported  by survey  maps, correspondence between the officials of  Kutch State and the British Administration, assertions made in the Annual  Administration  Reports for 75  years  before  1947, Statistical  Abstracts  relating to  British  India,  Bombay Administration  Reports  Gazetteers,  Memorandum  on  Indian States  and  a number of official publications, and  by  the Resolution of the Government of Bombay, dated                             305 February  24,  1914.  It would be a  fruitless  exercise  to enter  upon this historical material.  The survey and  other maps  do  not Jay down a uniform  or  consistent  alignment. Macdonald  Survey  appears  to align the  boundary  of  Sind towards the north even of Rahim ki Bazar which is admittedly on  the mainland of Sind, and was never claimed as  part  of the Rann.  This lends support to the view that the Macdonald Survey   report  was  rough,  and  was  intended  to  be   a topographical  map.  The maps prepared at the later  surveys follow,   with  some  variations  and  rectifications,   the Macdonald  Survey alignment, but those survey maps  also  do not  indicate  an  international boundary.   About  Pullan’s Survey it may be observed that Pullan himself stated that he had  "carefully abstained from laying down" or suggesting  a boundary (vide Resolution of the Government of Bombay July 3  and  August  7,  1885).  The  attitude  adopted  by   the Government of   Bombay which is set out in  the  resolution was that  they "did  not desire"  that  any  "question   of boundaries  in  the Rann between the Province  of  Sind  and Kutch" should beraised. Erskines Survey also is open  to the criticism that as anofficer  of the Sind Government  he made  statements  in his letter, dated  November  23,  1905, disowning  any  intention to determine the boundary  of  the Rann,  of  Kutch.  The maps prepared in the  Erskine  Survey were  not  accepted  as evidencing  a  boundary.   Even  the Maharao of Kutch did not agree to accept the alignment.   By the  resolution of 1914, it does appear that an attempt  was made to resolve the dispute about certain disputed  pockets, between  the  British  authorities governing  Sind  and  the Maharao  of  Kutch.  But a review of the  correspondence  of 1905, followed by erection of Pillars up to the western tri- junction,  and  establishment of a customs  line   in  1934- appear to suggest that the boundary east of the  trijunction was in a state of uncertainty.  Conflicting claims were made from time to time by the British authorities and the Maharao of  Kutch; and about the exercise of sovereign  rights  over the  areas now in dispute the evidence is very  scrappy  and discrepant.   An.  attempt  to  determine  how  far  general statements  of claim and refusal thereof were applicable  to the  sector  now in dispute would serve no  useful  purpose. Different  positions  were adopted by the  officers  of  the Government  of  India  according  as  the  exigencies  of  a particular situation demanded.  The statements or assertions do not evidence an existing state of affairs; they were only made  to  support or resist. claims then made, or  to  serve some immediate purpose.  The claimants before us were unable to  pinpoint  any definite and reliable  piece  of  evidence which established the exercise of sovereign authority by the Maharao of Kutch over the second sector. It  is true that the-territory of the entire State of  Kutch

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 46  

merged  with  the  Dominion of India.   That  territory  was treated as Indian, 3 06 territory   and  was  at  first  governed  as   a   separate administrative unit.  But unless it be established that  the disputed  sectors  were  part of the Kutch  State,  no  firm conclusion can be drawn from the agreement of merger. Undoubtedly the Government of India claimed at all  material times  the territory in Sectors (1) and (2).  In respect  of the  Kanjarkot  Sector there is no evidence of  exercise  of sovereign authority by the Maharao of Kutch at any point  of time.   The  sector  is  apparently  contiguous  to  and  an extension of the mainland of Sind.  It is not shown that  it has  the  characteristics of the Rann  terrain.   The  Dhara Banni  and Chhad Bet Sector is also apparently an  extension of  the  mainland of Sind.  There is  no  reliable  evidence about  the  enjoyment  of the benefits of the  land  in  the Sector  by  the  inhabitants  of  Kutch.   Evidence  of  the exercise  ,of suzerainty by the Maharao of Kutch  over  that Sector   is  also  sadly  lacking.   The  sector  has   more pronounced features of the Rann terrain, but it appears also to  be  contiguous to the mainland of Sind.   Even  granting that the evidence about the exercise of sovereign  authority by  the British authorities governing Sind since  1843  over the  Rann  of  Kutch is inconclusive, the  claim  by  Indian citizens  to exercise fundamental rights in respect  of  the territory  in that Sector may be entertained only if  it  be established  that  the territory is found to  be  originally governed  by  the  Maharao of Kutch.  On that  part  of  the claim, concrete evidence is wanting. It  was contended that the total area of Kutch according  to the White Paper on Indian States was 17,249 square miles out of  which  the area of the Kutch mainland was  8,461  square miles and the balance was 8,788 square miles which  consists of  the  Great  and Little Ranns of  Kutch.   In  the  Kutch Administration Report for 1910-11 and thereafter the area of Kutch was stated to be "7616 square miles" and it was stated that  "the  Rann  also belongs to the.Maharao".  In  1931  a correction  was  introduced that the area of the  State  was 8249.5  square miles ’exclusive of the Rann of  Kutch  which belongs   to   the  Kutch  State  territory.    The   Bombay Administration Reports from 1871-72 to 1923-24 give  varying figures  as the area of Kutch and make a  general  statement that the Rann of Kutch belongs to the State.  The  statement in the Imperial Gazetteers of 1881, 1885, 1908, 1909 contain State ments about the areas which are so discrepant that  no reliance  can be placed upon them.  Similarly  the  recitals about  the  extent of the Rann, in the  Gazetteers  of  the- Bombay  Presidency  are  also  imprecise.   The  only   safe conclusion  that can be drawn from these documents  is  that the  Rann  was  part  of Kutch State but  do  not  lend  any assistance in determining the northern boundary of the Rann. 30 7 It is stated in the affidavit of Mr. Dholakia that the  area of the Kutch District was 16567.3 square miles inclusive  of 9000 square miles of Rann territory.  But evidently the area of the Rann is a rough estimate. In  the Census of 1941 the area of Kutch was shown as  8,461 square  miles  and  in 1951 Census as  16,724  square  miles inclusive  of Rann.  There is no evidence that  the  figures are  based  upon  any precise survey in the  context  of  an accepted boundary. The  Census of 1961 shows that there were 171  residents  in the Chhad Bet.  But these consist exclusively of the  Border Guards posted in that area.  It is conceded that there is no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 46  

local  population  in  Chhad  Bet  and  Dhara  Banni.    The inclusion of Chhad Bet in the area within a polling  station for  the  1967  General Elections also  supports  merely  an assertion that it was claimed to be Indian territory.  It is not  evidence of the fact that it was territory  over  which the Maharao of Kutch exercised sovereign rights and which by merger of the territory became Indian territory. The evidence on which reliance was mainly placed in  support of  the claim was the conflicting alignments in  the  survey and other maps, the claims made by the Maharao of Kutch  aid the  Government of India which were not accepted.   Exercise of  de  facto authority over the territory  in  the  sectors after  the  disputes took concrete form is  evidence  of  an assertion merely and not evidence of pre-existing  sovereign rights.  The merger of the State of Kutch with the  Dominion of  India does not result in vesting of sovereign  authority over the territory of the two sectors, unless the suzerainty of the State of Kutch is established.  The boundary  between the  two  States  was indefinite and by  the  award  of  the Tribunal  the  true  boundary  of  India  and  Pakistan   is determined:  the  award  does not purport to,  nor  does  it operate  as  giving rise to, an obligation  to  cede  Indian territory. The  two inlets which practically encircle Nagar Parkar  are declared to be within Pakistan Border on the ground that  it would  be inequitable to recognise those inlets  as  foreign territory.  It was said by the Chairman of the Tribunal that the existence of such foreign territory may be "conducive to friction  and  conflict".   Regarding  the  two  inlets  the position  is  different since the ultimate decision  of  the Tribunal is founded on considerations of expediency and  not on strict determination of rights.  We have no power to sit in appeal over the decision of the Tribunal.  The ground  on which  the  award  is made against the  claim  made  by  the Government  of India does not strengthen the rights  of  the claimants to relief.  Unless there is evidence to show  that the  inlets were territory over which the Maharao  of  Kutch had  sovereign  rights,  acceptance  of  the  award  is  not required  to be implemented by a  constitutional  amendment. The total area of the inlets, we are 308 informed by counsel on both sides, does not exceed 25 square miles.  In the turbulent times which preceded the occupation of Sind by the East India Company in 1843 or even thereafter it  is  unlikely  that any authority was  exercised  by  the Maharao  of Kutch over these inlets.  It appears from  some of  the  maps that at the extremities the  inlets  are  very narrow  :  and roads cross these inlets from  Nagar  Parkar, which  is of the shape of a penninsula into the mainland  of Sind.  It is difficult to accept that at any time  effective sovereign  authority  could have been exercised  over  these inlets  by  the Maharao of Kutch.  There is no  evidence  of exercise  of any such right, before or after the  occupation of  Sind.  There being no evidence of exercise of  sovereign authority  by the Maharao of Kutch, this Court cannot  treat it as part of Indian territory. On  the view the claim made by the claimants that in  imple- menting  the award of the International Tribunal an  attempt is made to cede any part of the territory which formed  part of  the  State  of Kutch before 1948, or  was  in  de  facto occupation  and in respect of which sovereign authority  was exercised  by the Maharao of Kutch.  The award does no  more than define on the surface of the earth a boundary which has at  all material times remained indefinite, because  of  the nature of the terrain, the shifting nature of the border  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 46  

what was called Rann, the highly discrepant and  conflicting claims made from time to time by the British authorities  as well as the Kutch State authorities before the State  merged with  the  Dominion  of India in 1948,  and  the  persistent refusal  of  the  British  authorities,  though  there  were several occasions to demarcate the boundary between Sind and the Rann of Kutch. The appeal and the writs are dismissed. There  will be no order as to costs in the appeals  and  the writ petitions. R.K.P.S. L7Sup.CI/69-2,500-27-2-70-GIPF. R.K.P.S. Appeals and petitions dismissed. 309