STATE OF ORISSA Vs STATE OF ANDHRA PRADESH
Case number: Original Suite 11 of 1968
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
ORIGINAL SUIT No. 11 of 1968
STATE OF ORISSA … PLAINTIFF
VERSUS
STATE OF ANDHRA PRADESH … DEFENDANT
JUDGMENT
K. G. BALAKRISHNAN, CJI
1. This is a suit filed under Article 131 of the Constitution of
India by the State of Orissa (plaintiff) against the State of
Andhra Pradesh (defendant) for a declaration that the Borra
Group of villages, also referred to as ‘Borra Mutha’, form part of
the State of Orissa. Admittedly, the group of villages is located
within the geographical limits of the State of Andhra Pradesh.
1
2. The State of Orissa in its plaint has averred that Borra
Mutha [hereinafter ‘disputed area’) formed part of the Jeypore
(Impartible) Estate at the time of the creation of the province of
Orissa in 1936 by way of Government of India (Constitution of
Orissa) Order, 1936 [hereinafter ‘Orissa Order’] and that the
said Estate subsequently became part of the modern-day State
of Orissa after the abolition of the Zamindari system. The
plaintiff has submitted that the Province of Orissa, at the time
of its creation, had included the disputed area as contemplated
in the First Schedule, Part I, clause 2 (iv) read with Section 3 (1)
of the Orissa Order. Albeit, the disputed area is not territorially
contiguous with the State of Orissa, yet the plaintiff state claims
that it had remained within its administrative jurisdiction when
the Province of Orissa was created and later on when the
Constitution was enforced. It was also averred in the plaint that
the former province of Madras had admitted that the disputed
area fell within the administrative jurisdiction of the State of
Orissa. The plaintiff has also alleged that since the creation of
the State of Andhra (in 1953) and later on after the creation of
the State of Andhra Pradesh in 1956, the defendant state has
2
enforced its own administration over the disputed area. The
plaint then narrates as to how the defendant’s combative
approach had compelled the State of Orissa to write a letter (No.
16715, Ref. dated 7-7-1962) to the Central Government so that
the latter could persuade the State of Andhra Pradesh to vacate
the disputed area. The State of Andhra Pradesh in its reply to
the Central Government vide its letter (No. 2504- J/62.8) dated
30-3-1963, expressed its inability to vacate the disputed area
by urging that the disputed area legitimately belonged to the
State of Andhra Pradesh as per the order of the Andhra Pradesh
High Court in Writ Petition No. 539/1957. Accordingly, the
Central Government intimated the State of Orissa that it was
not in a position to intervene in the matter relating to the
disputed area, vide its letter [No. 38 /4/ 62-SR (R)] dated 24-1-
1964. According to the plaintiff state, its territorial integrity has
been violated by the defendant state which has committed acts
of trespass on account of its refusal to vacate the disputed area,
thereby impelling the plaintiff to approach this Court under
Article 131 of the Constitution. The plaintiff has averred that
3
the cause of action arose after the formation of the State of
Andhra (under Andhra State Act, 1953).
3. As stated earlier, the State of Orissa has filed the present suit
under Article 131 of the Constitution seeking relief in the form
of a declaration that the State of Andhra Pradesh has
committed trespass on its land by interfering in the
administration of some of its villages. The plaintiff’s prayer is
reproduced below:
“(i) A declaration that the area as shown in Annexure “B” including therein the main village Borra with 12 hamlets (Borra Mutha) is a part of the plaintiff’s territory and the plaintiff has the right to possess and administer the disputed area in exclusion of the defendant.
ii) A declaration that the defendant is liable to vacate the disputed area.
iii) A decree for eviction of the defendant from all and/or any part of the disputed area as are under illegal possession and administrative control of the defendant and further directing the defendant to vacate the disputed area and return the area to the uninterrupted possession, control and administration of the plaintiff.
iv)The cost of the suit and such further relief which may seem just and proper to this Hon’ble Court and to which
4
the plaintiff may be found entitled in the circumstances of the case and in the interest of justice.”
4. The defendant (State of Andhra Pradesh) in its written
statement has taken the preliminary objection that the prayer
sought by the plaintiff does not fall within the scope of the
original jurisdiction of this Court as contemplated in Article
131, since that provision limits the jurisdiction by expressly
stating that the latter is ‘subject to the other provisions of the
Constitution’. In this regard, attention has been drawn to
Article 1(2) of the Constitution which provides that the
territories of States shall be as specified in the First Schedule to
the Constitution. In view of this provision, it has been urged
that the territories comprising the State of Orissa have already
been specified in Entry No. 10 of the First Schedule to the
Constitution and therefore this suit is not maintainable. The
defendant has taken the stand that the province of Orissa was
constituted under the Orissa Order, issued on 3-03-1936 by His
Majesty in exercise of the powers conferred by Section 289 (ii) of
the Government of India Act, 1935. Section 3(2) of the Orissa
Order had provided that if a boundary dispute arose in respect
5
of the specified territories, then the decision of the Governor
General would be final. Therefore, it was contended that since
the plaintiff state had not claimed administrative jurisdiction
over the disputed area and neither did it assert its claim before
the Governor General, no relatable question can be raised after
the enforcement of Article 1(2) of the Constitution. Furthermore,
it was reasoned that the territories of all the States had been
specified in the First Schedule to the Constitution, which made
it amply clear that the disputed area fell in the erstwhile
Province of Madras, the relevant district of which is now an
integral part of the State of Andhra Pradesh. In response to the
plaint, it has been reasoned that even if this Court’s original
jurisdiction under Article 131 were to be assumed, reference
must be made to Section 3(2) of the Orissa Order which
controls the operation of Section 3(1) of the same which defines
and delimits the area to be included in the Province. As a
natural corollary to this, if a particular area is outside the
external land boundary as described in Part I of the First
Schedule to the Orissa Order, it cannot form part of the State of
Orissa. It has been contended that the reference to Jeypore
6
(Impartible) Estate must be construed in view of the fact that
the original Zamindari had been included in the Schedule to the
Madras Impartible Estate Act II of 1904. The holder of the
Estate made subsequent acquisitions which were geographically
situated outside the original Zamindari and the holders might
not have intended the inclusion of those acquisitions in the
original Zamindari. It has also been averred by the defendant
that it firmly believes that the disputed area was a subsequent
acquisition which was surrounded by another Zamindari and it
formed a separate enclave. The defendant has further submitted
that its administration of the disputed area has always been
lawful and that the plaintiff had never exercised administrative
jurisdiction over the disputed area, even before the formation of
the State of Andhra in 1953.
5. Based on the pleadings of the parties, the following issues
have been framed for adjudication:
7
Preliminary Issues
1) Whether the suit is maintainable under Article 131?
2) Whether the suit is maintainable in view of Section 3 (2)
and (3) of the Government of India (Constitution of Orissa)
Order, 1936?
3) Whether the suit is maintainable in the absence of notice
under Section 80 CPC?
4) Whether the suit is within limitation prescribed by law?
On Merits
5) Whether the Disputed Area was within the territories of
the Plaintiff state as constituted under the Constitution of
India?
6) Did the Disputed Area form a part of the Province of
Orissa as constituted by the Government of India
(Constitution of Orissa) Order, 1936?
8
7) Did the disputed area form a part of the Jeypore
(Impartible) Estate originally and subsequently and does it
form part of the province of Orissa?
8) Did the former Province of Madras and subsequently the
State of Madras admit that the disputed area formed part of
the plaintiff state?
9) Whether the disputed area remained under the
administration of the Province of Orissa when the said
Province was formed and thereafter the State of Orissa?
10) In view of the letter dated 7.7.1962 by the Government of
Orissa addressed to the Government of India (Annexure “D” to
the Plaint), can the Plaintiff lay any claim at all to the said
area after 1950?
11) Whether the expression the Jeypore (Impartible) Estate
means the Estate as included in the Schedule to Madras
Impartible Estate since the latter includes subsequent
acquisitions of various properties situated outside the original
Estate and in different Districts and Provinces?
12) Whether the defendant or its predecessor State or
Province has always exercised administrative control over
9
the disputed area and whether the said area was at all
material times treated as if it formed part of the defendant’s
State?
13) Whether in any event the Defendant has acquired the
right to administer the area by adverse possession?
14)Whether the suit is barred either because of waiver or
acquiescence on the part of the plaintiff as it did not raise any
such dispute under Section 3(3) of the Order under which the
Province of Orissa was constituted?
15) Whether the plaintiff is entitled to any relief and if so to
what relief?
Re: Issue I
6. As noted earlier, the State of Orissa was constituted under
the Orissa Order, which came into effect on 1.4.1936. The
Borra Group of Villages (i.e. Borra and twelve hamlets)
admittedly are not territorially contiguous with the main land
of Orissa. The interstate boundary is 11 kilometers away
(aerial distance) from Borra and its surrounding villages. This
10
group of villages is situated within the geographical limits of
the State of Andhra Pradesh which earlier formed part of
Jeypore (Impartible) Estate, a Zamindari, before the creation of
State of Orissa. Part II of the Orissa Order provided the
following:
PART II Definition of Orissa and Date of Separation
3. (1) The Province of Orissa (hereafter in this Order referred to as “Orissa”) shall consist of the areas specified in Part I of the First Schedule to this Order, and accordingly as from the date of the coming into operation of the provisions of sub section (1) of section two hundred and eighty-nine of the Act relating to the formation of the Province of Bihar and Orissa, those areas shall cease to form part of the Province of Bihar and Orissa, the Presidency of Madras and the Central Provinces respectively. 3. (2) The external land boundaries of Orissa shall be as described in Part II of the said schedule. 3. (3) If any question arises with respect to the boundaries as existing at the date of this Order, of any district, Agency, taluk, village, estate, forest or other area referred to in the said Schedule or otherwise with respect to the delimitation of the boundary of Orissa, that question shall be referred to the Governor- General, whose decision thereon shall be final.
_________
The first schedule to the Orissa Order described the areas
which would constitute the Province of Orissa. The relevant
provisions are reproduced below:
11
First Schedule Part – I
Areas comprised in the province of Orissa 1. That portion of the Province of Bihar and Orissa which is at the date of this Order known as Orissa division thereof. 2. Areas transferred from the presidency of Madras:- (i) The Ganjam Agency Tracts; (ii) the following areas in the non- Agency portion of the Ganjam district viz., the taluks of Ghumsur, Aska, Surda, Kodala and Chatrapur and so much of the taluks of Ichapur and Berhampur as lies to the north and west of the line described in part II of this schedule; (iii) So much of the Parlakimedi Estate as lies to the north and east of the said line; and (iv) The following areas in the Vizagapatam district, that is to say, the Jeypore (Impartible) Estate and so much of the Pottangi Taluk as is not included in that estate.
After the enforcement of the Constitution of India, the
territorial extent of the State of Orissa was specified in Entry
No. 10 of the First Schedule to the Constitution. The State of
Orissa has prayed for a declaration that the main village Borra
along with 12 hamlets (Borra Mutha) is a part and parcel of
the plaintiff’s territory and that the plaintiff has the right to
possess and administer the disputed area to the exclusion of
the defendant.
12
7. The defendant, in light of Article 131 and the proviso to the
same Article has contended that this Court lacks jurisdiction
and the suit is liable to be dismissed on the ground of lack of
jurisdiction. Article 131 provides the following:
“131. Original Jurisdiction of the Supreme Court. – Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute- (a) …
(b) … (c) between two or more States,
If and in so far the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of the Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.”
(emphasis supplied)
8. The defendant’s objection to the maintainability of the suit
under Article 131 is on two grounds. The first objection is that
the exercise of original jurisdiction under Article 131 is subject
to the other provisions of Constitution, and therefore this
Court is barred from adjudicating delicate issues relating to
13
state boundaries since Article 1(2) read with Entry 10 of the
First Schedule to the Constitution conclusively addresses this
aspect. The second strand of the objection is that as per
Article 3 of the Constitution, only the Union Parliament is
competent to increase, diminish or alter the boundaries of any
State in the manner provided. In response to this reasoning,
the plaintiff has pointed to the contents of the prayer to assert
that there is no intention to seek an alteration of boundaries
but instead, the prayer simply seeks a declaration from this
Court that the disputed area comes within the plaintiff State
as contemplated in Entry 10 of Schedule I to the Constitution
and that the plaintiff has the right to possess and administer
the disputed area to the exclusion of the defendant. The
plaintiff has also prayed for a declaration that the defendant is
liable to vacate the disputed area. Since plaintiff has not
sought any increase, alteration or diminishing of any area but
only a declaration that the disputed area comes under the
administrative jurisdiction of the plaintiff state, we are inclined
to agree with the view that Article 131 itself does not put
fetters on this Court to decide this original suit and there
14
would be no encroachment on the constitutionally sanctioned
power of the Parliament to alter state boundaries.
9. In order to decide whether this suit is barred under the
proviso to Article 131, we will have to ascertain the basis of the
plaintiff’s claim and the documents which have been produced
in support of the contentions. The plaintiff state, in order to
fortify its claim, has relied on a letter exchanged between the
Secretary to the Government of Madras and the Chief Secretary
of the Government of Orissa (Letter No. 829) dated 02.06.1936
(Referred to in Para 5 of the Plaint, Exhibit 60). The letter was
written to communicate to the Government of Orissa that the
Araku police station and the villages mentioned in List A
(prepared by Government of erstwhile Presidency of Madras)
would from that point of time come under the jurisdiction of the
Chintapalli circle of the Vizagapatam district in the erstwhile
Madras Presidency. In distinction from this, the letter further
stated that the villages enumerated in List B (prepared by
Government of Madras) would fall under the jurisdiction of the
Government of Orissa and accordingly under any police station
15
which the Orissa government deemed fit. In respect of the
correspondence by way of this letter, the operative question for
us is whether the said letter comes within the expression ‘other
similar instrument’ which appears in the Proviso to Article 131
of the Constitution. If the correspondence does indeed come
within the said expression, this Court cannot decide the present
suit on merits. For guidance on how to interpret this
expression, we can refer to the observations of this Court in
Sree Mohan Chowdhury v. The Chief Commissioner, Union
Territory of Tripura, [1964] 3 SCR 442, (B.P. Sinha, C.J., at p.
454):
“Is the President’s Order in question an “instrument” within the meaning of the section? The General Clauses Act does not define the expression “instrument”. Therefore, the expression must be taken to have been used in the sense in which it is generally understood in legal parlance. In Stroud’s Judicial Dictionary of Words and Phrases (Third Edition, Volume 2, page 1472), “instrument” is described as follows:
“An ‘instrument’ is writing, and generally imports a document of a formal legal kind. Semble, the word may include an Act of Parliament… (11) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s.2 (xiii), ‘instrument’ includes deed, will, inclosure, award and Act of Parliament…”
16
The expression is also used to signify a deed interpartes or a charter or a record or other writing of a formal nature. But in the context of the General Clauses Act, it has to be understood as including reference to a formal legal writing like an Order made under a statute or subordinate legislation or any document of a formal character made under constitutional or statutory authority…”
In P. Ramanatha Aiyar, Law Lexicon, 2nd edn. (Wadhwa & Co.,
1997) at p. 957, the word “instrument” has been defined as:
“a writing as the means of giving formal expression to some act, contract, process, or proceeding as a deed, contract, writ etc. ‘A writing given as the means of creating, securing modifying, or terminating a right or affording evidence; a deed of conveyance, a grant, a patent, an indenture etc. A formal legal writing e.g. a record deed or written instrument. ‘Anything reduced to writing; written instrument, or instrument of writing; more particularly, a document of formal or solemn character.’ Instrument is a word most frequently used to denote something reduced to writing, as a means of evidence, and writing as the means of giving formal expression to some act; a writing expressive of some act, contract, process or proceeding; a writing containing any contract or order.”
10. In respect of the letter exchanged between the Secretary to
the Government of Madras and the Chief Secretary to the
Government of Orissa, it must be noted that the letter simply
listed the names of the villages which would fall under the
jurisdiction of the Araku police station (which after the
creation of the Province of Orissa, remained under the
17
Chintalapalli circle of Vizagapatam district in the erstwhile
Madras Presidency), and those which would fall under the
jurisdiction of the then Government of Orissa. After
scrutinizing the contents of this letter, we find that it cannot
be described as an ‘other similar instrument’ in the legal
sense. The letter merely communicated the intentions of the
Madras Government at that point of time and it was not
issued under the authority of a legislation or subordinate
legislation. Neither can it be described as ‘a document of a
formal character which was made under constitutional or
statutory authority’. In the light of this finding, we hold that
the original jurisdiction of this Court is not barred with
reference to the proviso of Article 131 of the Constitution. We,
therefore, hold this issue of maintainability to be in favour of
the plaintiff.
Re: Issue 2
11. With respect to this issue, the defendant has averred in
the written statement that under the Orissa Order, the
18
Governor General was contemplated as the final authority to
decide any question with respect to an agency, taluk, village,
estate, forest or any area in relation to the delimitation of the
boundary of the Province Orissa. In view of the same, it was
asserted that this Court will not have jurisdiction to entertain
the present suit. On the contrary, the plaintiff avers that after
the formation of the Province of Orissa in 1936, it was the
Government of Orissa which had exercised jurisdiction over
the disputed area since there was no dispute with the
erstwhile Madras Presidency. It was further stated that after
the abolition of the Jeypore (Impartible) Estate under the
Orissa Estates Abolition Act, 1952, it was the Government of
Orissa which collected land revenue from these villages. In
fact, the plaintiff State has averred that when the Constitution
was enforced in 1950, it had control over the disputed area
but the situation changed after the formation of the State of
Andhra in 1953 which subsequently became part of the State
of Andhra Pradesh in 1956. From the viewpoint of the plaintiff
State, the defendant state then began transgressing into its
legal rights by interfering in the disputed area.
19
12. The dispute between both the states germinated in 1957,
which was well after independence and at that time the
position of the Governor General had become obsolete and the
Union Parliament was the supreme law making body in the
country. The exclusion of judicial scrutiny in the Orissa Order
which was notified in the pre-independence period cannot be
mechanically carried forward to the post-independence period.
Therefore, it is futile to invoke the authority of the Governor
General as contemplated under the Orissa Order. Accordingly,
Issue 2 will have to be answered in favour of the plaintiff.
Re: Issues 3 & 4
13. These issues can be addressed together since they both
pertain to procedural considerations vis-a-vis the
maintainability of this original suit before this Court. The
defendant has averred that the suit is liable to be dismissed on
two procedural grounds, firstly, that no notice was served
upon the defendant by the plaintiff as required under section
20
80 of the Code of Civil Procedure, 1908 [hereinafter ‘CPC’] and
secondly, that the period of limitation prescribed for obtaining
the nature of relief sought by the plaintiff is only three years
from the date of accrual of the right, as per Article 58 of the
Limitation Act, 1963. The right, if any, accrued to the plaintiff
on 01-04-1936, i.e., when the Province of Orissa was
constituted. In interpreting the scope of Article 131 of the
Constitution in State of Rajasthan v. Union of India (1977)
3 SCC 592, Chandrachud, J. [As his Lordship then was] held
that the requirement for entertaining a suit under Article 131
is that the suit must involve a question, whether of law or fact,
on which the existence or extent of a legal right depends. The
purpose of Article 131 is to afford a forum for the resolution of
disputes which depend for their decision on the existence or
extent of a legal right. In State of Karnataka v. Union of
India (1977) 4 SCC 608, Chandrachud, J. [as his Lordship
then was] held:
“162. The jurisdiction conferred on the Supreme Court by Article 131 of the Constitution should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure for determining whether a suit is maintainable. Article 131 undoubtedly
21
confers ‘original jurisdiction’ on the Supreme Court and the commonest form of a legal proceeding which is tried by a Court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which confers exclusive jurisdiction on this Court to entertain disputes of a certain nature in the exercise of original jurisdiction cannot be equated with a provision conferring a right on a Civil Court to entertain a common suit so as to apply to an original proceeding under Article 131 the canons of a suit which is ordinarily triable under Section 15 of Code of Civil Procedure by the court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a ‘suit’ and significantly, Article 131 uses words and phrases not commonly employed for determining the jurisdiction of a Court of first instance to entertain and try a suit. It does not speak of a ‘cause of action’, an expression of known and definite legal import in the word of witness actions. Instead, it employs the word ‘dispute’, which is no part of the elliptical jargon of law. But above all, Article 131 which in a manner of speaking is a self-contained code on matters falling within its purview provides expressly for the condition subject to which an action can lie under it. That condition is expressed by the clause: “if and in so far as the dispute involves any question (whether of law or fact) on which the existence of or extent of a legal right depends.” By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in clauses (a) to (c) must involve a question on which the existence or extent of a legal right depends.”
22
Chandrachud J. further had categorically stated:
“163 …I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the dispute arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits.”
In support of the same view, P.N. Bhagwati J. [as his Lordship
then was] had observed:
“165. A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more governments- either the one or the other possesses the constitutional power to act.”
In the light of the aforesaid observations, it is evident that the
procedural provisions which regulate the admissibility of civil
suits before ordinary civil courts do not apply in the strict
sense when this Court exercises its original jurisdiction to
decide suits between States. Accordingly, Issue 3 and 4 will
have to be answered in favour of the plaintiff.
23
Re: Issues 6, 8, 9 & 10
14. These four issues are taken together since they are
interconnected and the fate of the suit largely depends upon
the answer to the aforesaid issues. The erstwhile Zamindar of
Jeypore was the holder of the Impartible estate of Jeypore as
well as the Impartible estates of Madugula and Pachipenta.
There is no doubt that all of these estates fell within the
territory of the erstwhile Presidency of Madras till 01-04-1936.
However, under Section 289(iii) of the Government of India
Act, 1935, His Majesty the King Emperor had passed the
Orissa Order in 1936 which led to the carving out of the
province of Orissa. The Orissa Order had contemplated that
the areas constituting the Jeypore estate were to be
transferred to the province of Orissa. His Majesty’s Council
had at the same day (i.e. 3-03-1936) issued the Government of
India (Excluded and partially Excluded areas) Order 1936
[hereinafter ‘Order-in-Council’] acting under Section 91(1) of
the Government of India Act, 1935. Part II of the schedule to
the latter Order included the areas that were to be transferred
24
to Orissa from the Vizagapatam Agency in the erstwhile
Madras presidency. The effect of this order was the transfer of
Jeypore which included within its ambit the village of Borra,
Gatevalsa etc. As noted earlier, the Jeypore estate that was
contemplated as part of the State of Orissa was subsequently
abolished in accordance with the Orissa Estate Abolition Act,
1952.
15. The plaintiff has submitted that the Order-in-Council had
specifically included the whole of the estate of Jeypore in the
province of Orissa and that no part of it was intended to be
retained in the erstwhile Madras presidency. In support of this
contention, reliance has been placed on the words of Section 3
read with Part I of the First Schedule to the Orissa Order. The
relevant section provides:-
“(I) The province of Orissa (hereinafter in this Order referred to as (Orissa) shall consist of the areas specified in Part I of the First Schedule to this order, and accordingly as from the date of coming into operation of the provisions of Sub-Section (1) of section two hundred and eighty-nine of the Act relating to the formation of the province of Bihar and Orissa, those areas shall case to form part of the province of Bihar and Orissa, the
25
Presidency of Madras and the Central Provinces respectively.”
Now it must be noted that Part I of the First Schedule to the
Orissa Order defines the area which constituted the province
of Orissa. Clause 2 (iv) of this part states that the following
areas in the Vizagapatnam district, that is to say, the Jeypore
(Impartible) Estate and so much of the Pottangi taluk as is not
included in that estate, are comprised in the province of
Orissa. On the basis of the language extracted above, it was
asserted that the whole of the Jeypore (Impartible) Estate had
been transferred to the then newly formed province of Orissa
and that no part of the same had been left in the territories
that are now part of the State of Andhra Pradesh. However,
such an interpretation would be overlooking Section 3(2) of the
Orissa order as well as Part II of the First Schedule to the
same. Section 3(2) contemplates how to define the land
boundaries of Orissa. Those boundaries are described in part
II of the First schedule to the Orissa Order. As contemplated
by Section 3(2) and part II of the first schedule, a map was
prepared by the Government of India as also by the erstwhile
26
Presidency of Madras. Undoubtedly, a look at the map
establishes that the villages in dispute are not territorially
contiguous with the bounds of the State of Orissa. They are
situated at some distance from the inter-state boundary and it
would be quite untenable to declare them as coming within
the plaintiff state’s territory.
16. However, the plaintiff has relied on two cases to argue that
a departure can be made from the norm of territorial
continuity. Reference has been made to the examples of the
Sankara Tract, which is an enclave of the State of Madhya
Pradesh that is physically located within the State of Orissa as
well as the Union Territory of Pondicherry which includes a
few enclaves that are located at a considerable physical
distance from each other. However, these two examples relate
to some specific historical considerations and these cannot be
equated with the dispute before us. The example of Sankara
Tract is distinguishable from the present case since this tract
was earlier part of Sarangarh, an erstwhile Princely State
which acceded to the Union of India on 1-1-1948. The
27
absorption of the Sankara Tract in the State of Madhya
Pradesh can hence be traced back to an instrument of
accession, which is a circumstance inviting considerations
that are entirely different from those before us in the present
suit. Furthermore, it must be noted that the Union Territory of
Pondicherry comprises of areas which were earlier governed by
the French government and under a special agreement with
the French Government, Pondicherry was merged with the
Union of India. This Court therefore cannot examine the
validity of such an agreement in view of the proviso to Article
131, primarily because the same was an outcome of political
negotiations. The general rule is that the extent of a province
should be based on the principle of territorial continuity.
17. The plaintiff has denied the averment of the defendant on
this point by asserting that the Orissa Order did not exclude
or preclude the inclusion of any territory not having a
contiguous land connection with the main territory. In support
of this contention, the plaintiff has relied on Letter No. 829,
dated 02-06-1936 sent by the Secretary of the Government of
28
Madras to the Chief Secretary of the Government of Orissa,
which stated that the villages mentioned in List B (Prepared by
Government of Madras) would fall within the administrative
jurisdiction of the province of Orissa. However, the defendant
has strongly refuted this claim by submitting that the above-
mentioned letter was eclipsed and substituted by Government
Order Modification [G.O.M.) No. 2751 issued by the Home (A)
Department, Dated 17-10-1936, by which the State of Madras
had endorsed the contents of another Letter No. 2752, dated
14-10-1936 which declared that the Borra group of villages
(shown as item 7 in List B in Letter No. 829, dated 02-06-
1936) would remain in the State of Madras. The defendant has
strongly urged that in view of Letter No. 2753, dated 14-10-
1936, all the villages shown in List B (except Chatuva) had
remained in the State of Madras and subsequently became
part of the State of Andhra in 1953 and the successor State of
Andhra Pradesh in 1956.
18. We should give due importance to the fact that the plaintiff
State had admitted in Letter No. 1671, dated 07-07-1962, sent
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by the Chief Secretary, Government of Orissa to the Secretary,
Ministry of Home Affairs, Government of India (Exh.1) that the
disputed area was outside the external land boundary of the
State of Orissa. The letter stated:
“…But the external boundary of the Orissa province as defined in the First Schedule of the order being inconsistent with the enumeration of the areas indicated in Part- II, the resultant effect was that the “Borra Mutha” which was a part of the Impartible estate of Jeypore, remained in Madras province (now in Andhra Pradesh) and continues to be administered as part of it right up to date…”
Furthermore, while taking into account the operation of the
Orissa Order of 1936, the letter had stated:
“…this Government feels that the mere fact that in the map of Orissa prepared in pursuance of the above order, this area was not shown by mistake, cannot take away the legal claim of this State, and therefore the Government of India are requested to advice the Andhra Pradesh Government to restore the ‘Borra Muttah’ to Government of Orissa sine it forms a part of Orissa in accordance with the Constitution of Orissa Order, 1936…”
As noted earlier, the Government of India acted on this letter
and wrote a letter to the Government of Andhra Pradesh, vide
Letter No. F. 38/4/62- SR-RI (dated 16-8-1962), to which the
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Government of Andhra Pradesh sent a reply, vide Letter No.
2504-J/62.8 (dated 30-03-1963), (Exh. 3) wherein it was
stated:
“Ever since 1936 this area has been under the continuous management and administration successively of Madras, Andhra and Andhra Pradesh Govts. and the Orissa Government has never in the past exercised any jurisdiction or control over the area.”
Exh. 3 also cited the order of the Andhra Pradesh High Court
in W.P. No. 539/1957, wherein it had been declared that a
map was prepared at the time of the promulgation of the
Orissa Order, which clearly indicated that the disputed area
fell within the territory of the erstwhile Madras Presidency.
Subsequently, the Government of India, vide its Letter No.
38/4/62-SR(R), [Exh. 2] sent a reply to the Government of
Orissa after taking into account the contents of the letter sent
by the Government of Andhra Pradesh, the relevant extracts of
which are as follows:
“The letter shows that the area claimed by the Orissa Government being well within the adjoining state could not have been intended to form part of Orissa and that the intention is borne out by the description of external land boundaries of Orissa in part II of the First
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Schedule read with para 3 (2) of the Government of India (Constitution of Orissa) Order, 1936. In view of this, the Government of India regret their inability to advise the Andhra Pradesh Government to transfer the Borra Muttah area to Orissa.”
After examining Section 3 of the Orissa Order along with the
First Schedule to the same and perusing the correspondence
exchanged between Government of Orissa, Government of
India and Government of Andhra Pradesh, we find the
contentious issues to be in favour of the defendant.
Re: Issue 5
19. In view of what has been stated by us while answering
Issues 6, 8, 9 and 10, this issue does not need any further
consideration and this issue is accordingly answered in favour
of the defendant.
Re: Issues 7, 11 and 12
20. These issues have to be answered on the basis of the
assertions made in the plaint, written statement as well as the
rejoinder to the written statement. The defendant has averred
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that the reference to the Jeypore (Impartible) Estate as
mentioned in the First Schedule to the Orissa Order should be
construed as one to the ancient Zamindari which had been
included in the Schedule to the Madras Impartible Estate Act
II of 1904. The defendant has submitted that the holders of
the Jeypore (Impartible) Estate had made subsequent
acquisitions of various properties including land and buildings
whose locations were at some distance from the original
Zamindari. Some of these subsequent acquisitions were in
different districts and provinces and therefore it cannot be
said with certainty that the holder intended to integrate such
acquisitions with the original Zamindari. According to the
defendant, there is reasonable cause to believe that the
disputed area was one such subsequent acquisition. The
disputed area had earlier formed an enclave which was
surrounded by another Zamindari. Proceeding with this
reasoning, the defendant has submitted that the Order-in-
Council had only intended that the original Zamindari of
Jeypore (Impartible) Estate would fall under the administrative
control of the State of Orissa. The intent of the Order-in-
33
Council, as maintained by the defendant at that time, was
accepted by both the governments, i.e. State of Orissa as well
as the erstwhile Presidency of Madras. The defendant has
further made the case that the plaintiff had never exercised
any type of jurisdiction over the disputed area and that the
available records demonstrate that the disputed area had been
part of a taluk which was in turn a part of the erstwhile
Madras Presidency and therefore, at the time of the
enforcement of the Constitution, the disputed area did not fall
within the territories of the State of Orissa as contemplated in
Entry 10 of Schedule I to the Constitution. Hence, it was urged
that when the State of Andhra was formed in 1953, the
disputed area became part of the same.
21. On the other hand, the plaintiff in rejoinder has contended
that the disputed area formed part of the Jeypore (Impartible)
Estate as contemplated in the Schedule to the Madras
Impartible Estate Act (II of 1904). The plaintiff has denied that
the disputed area was a subsequent acquisition by the holder
of the said Estate. The plaintiff has also asserted that it had
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never considered the disputed area to be under the
jurisdiction of the Madras Presidency. In support of this
contention, it was submitted that the disputed area had
remained under the revenue jurisdiction of the Jeypore
(Impartible) Estate till the abolition of the Estate by way of a
State legislation in 1952. The plaintiff has also relied on a
report compiled by the East India Company in 1784 in which
it was noted that the disputed area came within the Zamindari
and that the Zamindar of Jeypore used to collect annual
revenue of 25 rupees from the disputed area. It was further
stated that in 1893, the Maharaja of Jeypore had gifted the
Borra village to the Pujari of Borra. The plaintiff has thus
argued that the claims of the defendant are contrary to the
documents which are in its possession and knowledge.
22. It is of course the refusal of the defendant to concede the
disputed area to the plaintiff which gave rise to the cause of
action in the present suit. The plaintiff seeks administrative
control over the disputed area since it alleges that the
defendant has committed trespass by interfering with the
35
administration of the disputed area after 1953 and more
particularly after 1957. The fact that the disputed area was
part of the Jeypore (Impartible) Estate before the notification of
the Orissa Order has not been contested by the defendant.
However, the plaintiff has failed to establish that it had
governed the disputed area prior to the constitution of the
State of Andhra in 1953, especially in light of the fact that the
disputed area is located at a considerable distance from the
inter-state boundary. The documents relied upon by the
plaintiff do not convince us that the plaintiff had exercised
administrative jurisdiction over the disputed area, since the
same is surrounded by villages that have undeniably been
under the administrative control of the State of Andhra
Pradesh. In fact, the plaintiff has admitted that till the
abolition of the Jeypore Estate, it was not the State of Orissa
but the Zamindari which had collected land revenue from the
disputed area. A plain reading of Part I and II of the Orissa
Order along with the First Schedule to the same, leads us to
conclude that the Order-in-Council did not intend to include
the disputed area within the administrative control of the
36
State of Orissa. The three issues are answered accordingly.
Re: Issues 13 and 14
23. The aforesaid issues need not be answered in detail since
we have already resolved that the proceedings in an original
suit under Article 131 of the Constitution are entirely
distinguishable from ordinary civil suits. An observation of
Y.V. Chandrachud J., [As His Lordship then was] in State of
Karnataka v. Union of India (1977) 4 SCC 608, may amply
clarify the position:
“165. In a civil suit the plaintiff has to succeed on the strength of his own title, not on the weakness of his adversary because the defendant may be a rank trespasser and yet he can lawfully hold on to his possession against the whole world except the true owner. If the plaintiff is not the true owner, his suit must fail. A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more governments - either the one or the other possesses the constitutional power to act.”
The issues are answered accordingly.
Re: Issue 15
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24. After examining the averments and contentions advanced
on behalf of both the parties, we do not deem it fit to grant the
declaration sought by the plaintiff. Consequently the prayer of
the plaintiff is unsustainable and liable to be dismissed
without any other relief.
25. The plaintiff has failed to establish before us that it had
exercised administrative control over the disputed area after
the creation of Orissa in 1936. The defendant has produced
documents before us which entail that it is the State of
Andhra Pradesh and its predecessor states which have been
exercising the administrative jurisdiction over the disputed
area. The defendant has also demonstrated that all the villages
that are part of the Borra Group, lie within the Ananthagiri
Mandal of the present-day Vishakhapatnam District (Exhibits.
E; K/1; Q; R). The villages which comprise the disputed area
are listed below:
1. Borra- Getuvalasa
2. Ninimamidi
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3. Pedduru
4. Pooluguda
5. Bitrabeda
6. Dekkapuram
7. Kuntiyasimidi
8. Eguvamamidi valsa
9. Koyitiguda
10. Liddangi
11. Jeerugedda
12. Bisiaguda
13. Bodilibodi
26. The Orissa Order of 1936 did not intend to allocate the
disputed area to the State of Orissa, even though it had been
acquired by the Zamindar of the Jeypore (Impartible) Estate at a
certain stage. After the formation of the province of Orissa, the
disputed area was part of the Vizagapatam District of the
erstwhile Madras Presidency and despite the contrary claims of
the plaintiff, the disputed area was notified as part of the
Srungavarapukota assembly constituency in the State of
39
Andhra Pradesh. It is also pertinent to note that the plaintiff
could not establish that the inhabitants of the disputed area
recognize Oriya as their first language.
27. Therefore, in the light of these findings and considerations,
we reject the prayer of plaintiff and the suit is dismissed
accordingly. There will be no order as to costs.
….………………….…
CJI [K.G.BALAKRISHNAN]
..… ………………………J.
[R.V. RAVEENDRAN)
…………….…………….J.
[DALVEER BHANDARI]
New Delhi May 5, 2010
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