http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: RAM KISHORE SEN AND OTHERS

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 11/08/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  644            1966 SCR  (1) 430  CITATOR INFO :  R          1968 SC 637  (4)  R          1969 SC 783  (42,86,87)  RF         1970 SC1126  (16)  RF         1971 SC1594  (3)  E          1990 SC1692  (4)

ACT: Constitution (Ninth Amendment) Act, 1960-Transfer of certain areas to Pakistan in fulfillment of India-Pakistan Agreement -Legality of.

HEADNOTE: As  a result of the ’Indo-Pakistan Agreements’ entered  into in  1956 between the Prime Ministers of India  and  Pakistan half  of  the  area known as Barubari Union No.  12,  and  a portion  of  Chilahati village admeasuring  512  acres  were agreed  to  be transferred by India  to  Pakistan.   Certain questions  arising  out of the implementation  of  the  sand Agreements were referred by the President under Art. 143 (1) of  the  Constitution, to this Court, and were  answered  by this  Court  in  Special  Reference  No.  1  of  1959.    In accordance with the answers therein given, Parliament passed the  Constitution  (Ninth Amendment) Act, 1960.   There  was provision  in  the  Act  for a  date,  to  be  appointed  by notification  in the Official Gazette, for the  transfer  of the  areas in question of Pakistan.  In regard  to  Berubari Union No. 12 the Second Schedule to the Amending Act,  inter alia,  This will be so divided as to give half the  area  to Pakistan,  the  half  adjacent to India  being  retained  by India.   The  division  of Berubari Union  No.  12  will  be horizontal,  starting from the north-east comer of  Debiganj Thana."  The  appellants filed a writ petition in  the  High Court  of Calcutta challenging the legality of the  proposed transfer  of  the said areas of Berbubari Union No.  12  and Chilahati village to Pakistan.  The language of the Amending Act in regard to Berubari Union No., 12 was, they urged,  so confused that it was incapable to implementation.  In regard to  Chilahati  village they urged that it  was  outside  the Radcliffe  Award.   Reliance  was  placed  by  them  on   an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

unofficial  map, Ext.  A-1.  The High Court found that  Ext. A-1  was inadmissible and unreliable.  Relying on  the  maps produced  by the respondents it dismissed the writ  petition filed  by the appellants who, with certificate, appealed  to this Court. It  was  urged  on behalf of the appellants  :  (1)  If  the division  of Barubari Union No. 12 was made as  directed  by the said amendment no portion of Berubari Union No. 12 would fall  to the south of the horizontal line starting from  the north-cast corner of Debiganj Thana, so that no part of  the said  Union could be transferred to Pakistan. (2)  The  High Court  erred  in  holding that map  Ext.   A-1  was  neither relevant  nor  accurate.  (3)  The  location  of   different villages  in  the  various Thanas was a  matter  within  the special knowledge of the respondents and under s. 106 of the Evidence  Act the onus of proving the relevant facts was  on the  respondents.  (4) The portion of Chilabati  village  in question  was different from the village of Chilabati  which bad gone to Pakistan under the Radcliffe Award, as was shown not  only  by maps but by certain  private  documents  which described  Chilabati as part of Jalpaiguri Thana. (5)  Entry 13 in the First Schedule to the Constitution provides, inter alia,   that  West  Bengal  means  the   territories   which immediately before the commencement of the Constitution were either  comprised  in the Province of West  Bengal  or  were being  administered  ’as  if’  they  formed  part  of   that Province.   ’Me portion of Chilahati in question  was  being administered  ’as if’ it was a part of the Province of  West Bengal and must be deemed to have been included 431 in  the territory of West Bengal within the meaning  of  the First  Schedule,, and if that was so, it was a part  of  the territory  of India under Art.  1 of the  Constitution.   It could  not therefore be ceded to Pakistan without  following the, procedure laid down by this Court in Special  Reference No. 1 of 1959. (6) In any case Pakistan’s title to Chilahati had been lost by adverse possession. HELD : (i) It had not been proved that Ext.  A-1, relied  on by  the appellants, was generally offered for  public  sale. The requirements of s.   36  of the Evidence Act  were  thus not satisfied and Ext.  A-1 was irrelevant.  Even   if   the said  map was treated as relevant its accuracy had not  been established  and no presumption as to its accuracy could  be made under s.  83   of   the   Evidence   Act,   since   the requirements laid down in the first part of the section were not satisfied, [440 E-H] (ii) -Me location of’ villages of different Thanas could not be  regarded as a matter within the exclusive  knowledge  of the respondents so as to attract the provisions of s. 106 of the Evidence Act.  Both parties had; produced maps, the High Court refused to accept the maps produced by the  appellants and  treated the maps produced by the respondents as  worthy of  credence.  Under the circumstances no question  of  onus really arose. [441 G-H] (iii)     The  map produced by them having been rejected  by the High Court, the appellants were hardly in a position  to contend  that  they  had established  their  plea  that  the relevant  portion  of  the Constitution  Amendment  Act  was incapable of implementation. [442 D-E] (iv) When  it was said that the division of  Berubari  Union No. 12. would be    ’horizontal’  starting from  the  north- east corner of Debiganj Thana it   was not intended that  it was  to  be  made  by a  mathematical  line  in  the  manner suggested by the appellants.  The provision did not refer to any  line as such, it only indicated broadly the point  from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

which  the  division  was to begin--east to  west-,  and  it emphasised  that in making the said division what had to  be borne in mind was the fact that the Union in question was to be divided half and half.  The contentions of the appellants in  regard to Berubari Union No. 12 were  therefore  rightly rejected by the High Court. [442 H--443 D] (v)  The  materials on record showed that the contention  of the  appellants that Chilahati village formed part of  Thana Jalpaiguri  was incorrect : it clearly lay  within  Debiganj Thana  and  under the Radcliffe Award had been  allotted  to Pakistan.  The private documents produced by the  appellants for the purpose of showing that a part of Chilahati  village lay  in jalpaiguri Thana were rightly rejected by  the  High Court, as in view of the maps produced by !he respondents it was  difficult to attach any importance to the  recitals  by individuals  in  their respective documents.  It  was  plain that  through inadvertence a part of village  Chilahati  was not  delivered to Pakistan on the occasion of the  partition which  followed the Radcliffe Award.  What  the  respondents proposed  to  do  wag to transfer to Pakistan  the  area  in question which really belonged to her.  This conduct of  the respondents spoke of their fair and straightforward approach to this matter. [444 E-45 D] (vi) The clause ’as if’ in Entry 13 of the First Schedule to the  Constitution  was  not intended to  take  in  cases  of territories which were administered with the full  knowledge that  they  did  not belong to West Bengal’ and  had  to  be transferred in due course to Pakistan.  ’Me said clause  was clearly  and specifically intended to refer  to  territories which  merged with the adjoining States at the crucial  time and   so  it  could  not  include  the  part  of   Chilahati administered by West Bengal.  It would be idle to contend 432 that by virtue of the accidental fact that this area had not been transferred to Pakistan, though it should have been, it had  constitutionally  and  validly become a  part  of  West Bengal  itself.  That being so, there could be  no  question about  the constitutional validity of the proposed  transfer of this area to Pakistan.  What the respondents were seeking to  do  was to give to Pakistan what  belonged  to  Pakistan under the Radcliffe Award. [448 A-E] (vii)     The  Plea of adverse possession was not raised  by the appellants in their writ petition.  Besides it was plain that  neither  the  Union of India nor  the  State  of  West Bengal,  which  were impleaded to the  present  proceedings, made such a claim.  It would indeed be surprising that  even though  the  Union  of India and the State  of  West  Bengal expressly said that this area belonged to Pakistan under the Radcliffe  Award  and had to be delivered to  Pakistan,  the petitioners  should  intervene and contend  that  Pakistan’s title to this property had been lost because West Bengal had been adversely in possession of it. [448 G-H] (viii)    In  Special  Reference No. 1 of 1959 it  had  been inadvertently  assumed while discussing the several  clauses of Art. 3 that the word ’State’ used therein did not include Union Territories.  In view of s. 3 (58) (b) of the  General Clauses  Act (10 of 1897) this assumption was  not  correct. However  the opinion of the Court in that Reference was  not based  mainly on the above assumption, but on the view  that the power to cede a part of national territory and the power to acquire additional territory were the inherent attributes of sovereignty. [438 H]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 436 of 1965. Appeal  from the judgment and order dated November 17,  1964 of the Calcutta High Court in Civil Rule No. 849(W) of 1963. A.   D.  Mukherjee, Arun Dutta, S. P. Mukhopadhya, M.  Raja- gopalan,  D. N. Mukherjee, K. Rajendra Chaudhury and  K.  R. Chaudhury, for the appellants. C.   K.  Daphtary, Attorney-General, B. Sen and B. R. G.  K. Achar, for respondents nos.  1 and 2. B.   Sen, S. C. Bose and P. K. Bose, for respondents nos.  3 and 4. The Judgment of the Court was delivered by Gajendragadkar,  C.J.  The  writ petition  from  which  this appeal  arises  was filed by the six appellants  who  reside within  the  limits of Thana Jalpaiguri in the  district  of Jalpaiguri.   To  their  petition,  they  had  impleaded  as opponents  the  four respondents, the Union  of  India,  the Secretary  of  External Affairs, Government  of  India,  the State of West Bengal, and the Collector of Jalpaiguri.   ’Me substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or  taking steps to transfer a portion of Berubari Union No. 12 and the village of                             433 Chilahati to Pakistan and they urged that the said attempted transfer  was illegal. That is why the writ petition  prayed that  appropriate  writs  or  directions  should  be  issued restraining  the  respondents  from  taking  any  action  in pursuance  of  their intention to make  the  said  transfer. Appellants 1 and 2 are the original inhabitants of  villages Senpara  and  Deuniapara respectively which are  within  the limits of Berubari Union No. 12.   They own ancestral  homes and cultivated lands in the said villages, and they live  in the  homesteads. Appellants Nos. 3 and 4 originally  resided in  villages in Thana Boda adjoining Thana  Jalpaiguri;  but when  Thana Boda was transferred to Pakistan as a result  of the  partition  in 1947, they came over to the  villages  of Senpara and Gouranga bazar respectively within the limits of Berubari  Union No. 12; since then, they have acquired lands there  and  built  their  homesteads  in  which  they  live. Appellants  Nos.  5  and 6 are the  inhabitants  of  village Chilahati, and according to them,  this village is  situated in Thana Jalpaiguri. In this village, these  two  appellants have their ancestral homes and cultivated lands.      It  is a matter of common knowledge that  on  September 10,  1956,  an  agreement  was  reached  between  the  Prime Ministers  of India and Pakistan with a view to settle  some of  the  disputes  and  problems  pending  between  the  two countries.  This agreement was set out in the  note  jointly recorded by the Commonwealth Secretary, Ministry of External Affairs, Government of India, and  the  Foreign   Secretary, Ministry  of  Foreign Affairs  and  Commonwealth  Relations, Government  of  Pakistan. After this agreement  was  entered into, the President of India referred three questions  to this Court for consideration and report thereon, under  Art. 143(1)  of the Constitution, because he took the  view  that the said questions had arisen and were of such nature and of such  importance that it was expedient that the  opinion  of the  Supreme Court of India should be  obtained  thereon.(1) These three questions were thus formulated :-  "(1) is any legislative action necessary  for               the  implementation of the Agreement  relating               to Berubari Union ?  (2)  If so, is a law of Parliament  relatable               to  Article 3 of the  Constitution  sufficient

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

             for the purpose      or is an amendment of the               Constitution in accordance with Article 368 of               the Constitution necessary, in addition or  in               the alternative?               (1)   Special Reference No I of 1959.  In  re:               The  Berubari Union and Exchange of  Enclaves-                (1) [1960] 3 S.C.R. 250 at pp. 256, 295-4.               434               (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 ?"               On  the above Reference, this  Court  rendered               the following ,answers : -               Q. (I ) Yes.               Q.    (2) (a) A law of Parliament relatable to               Art.   3   of  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 t  law  on               those lines under Art. 368 and then follow  it               up with a law relatable to the amended Art.  3               to implement the Agreement.               Q.    (3) Same as answers (a), (b) and (c)  to               Question 2. As a result of the opinion thus rendered, Parliament  passed the Constitution (Ninth Amendment) Act, 1960 which came into operation  on  December  28, 1960.   Under  this  amendment, "appointed  day" means such date as the  Central  Government may, by notification in the Official Gazette, appoint as the date  for  the  transfer  of  territories  to  Pakistan   in pursuance of the ’Indo-Pakistan Agreements’ which means  the Agreements dated the 10th September, 1958, the 23rd October, 1959,  and the 11th January, 1960 entered into  between  the Government  of India and Pakistan.  The  relevant  extracts. from  the  said Agreements have been set out in  the  Second Schedule  to the Ninth Amendment Act.  The material  portion of the said Schedule reads as follows "(3) Berubari Union No. 12               This  will be so divided as to give  half  the               area  to Pakistan, the other half adjacent  to               India  being retained by India.  The  division               of  Berubari Union No. 12 will be  horizontal,               starting  from the north-east corner of  Debi-               ganj Thana.                435               The  division should be made in such a  manner               that the Cooch Behar enclaves between Pachagar               thana of East Pakistan and Berubari Union  No.               12  of  Jalpaiguri thana of West  Bengal  will               remain   connected  at  present  with   Indian               territory  and  will remain with  India.   The               Cooch  Behar enclaves lower down between  Boda               thana of East Pakistan and Berubari Union  No.               12  will be exchanged along with  the  general               exchange of enclaves and will go to Pakistan."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

The  appellants alleged that it had come to their  knowledge that  about  a  month before the  date  of  their  petition, officers of the two Governments had gone to the locality  to make   demarcation  by  holding  a  survey  and   that   the respondents intended to effect a partition of Berubari Union No. 12 with a view to transfer the southern part of the said Union  to  Pakistan.   They had also come  to  know  that  a similar  attempt  to transfer village  Chilahati  was  being made.  The appellants also alleged that the language of  the Amendment  Act in question in so far as it relates to  Beru- bari Union No. 12 is involved and confused and is  incapable of  implementation. In the alternative, it is urged that  if the division of Berubari Union No. 12 is made as directed by the  said  amendment, no portion of Berubari  Union  No.  12 would fall to the south of the horizontal line starting from the northeast comer of Debiganj Thana, and so, no portion of the said Union can be transferred to Pakistan.  In regard to the village of Chilahati, the appellants’ case was that  the said  village  was not covered either by  the  Indo-Pakistan Agreements  or  by the Ninth Amendment  Act.   According  to them, this village was a part of West Bengal and it was  not competent  to  the respondents to transfer  it  to  Pakistan without adopting the course indicated in that behalf by  the opinion of this Court on the earlier Reference.  That is how the appellants claimed the issue of a writ of in the  nature of  mandamus  commanding  the respondents  to  forbear  from proceeding  any further with the survey and  demarcation  of the  area  of Berubari Union No. 12 and Chilahati  and  from giving  effect  to their intentions to transfer  a  part  of Berubari  Union No. 12 and Chilahati to Pakistan.   That  is the substance of the petition filed by the appellants before the Calcutta High Court on December 4. 1963. The respondents disputed the appellants right to obtain  any writ  or direction in the nature of mandamus as  claimed  by them.  They urged that the relevant provisions of the  Ninth Amendment  Act  were neither vague nor  confused,  and  were capable of imple- 436 mentation.   It was alleged that the assumption made by  the appellants  that  a strict horizontal line had to  be  drawn from  the  north-cast  comer of  Debiganj  Thana  under  the provisions  of  the said Amendment Act, was not  valid;  and they urged that the said Amendment Act had provided for  the partition  of  Berubari Union No. 12 half and  half  in  the manner  indicated by it.  The respondents  were,  therefore, justified in giving effect to the material provisions of the said Amendment Act.  In regard to the village of  Chilahati, the respondents contended that the said village formed  part of  Debiganj  Thana and had been assigned to  the  share  of Pakistan  by the Radcliffe Award.  All that the  respondents intended  to do was to transfer to Pakistan a small area  of about  512  acres  of the said village which  had  not  been delivered  over  to Pakistan on the  earlier  occasion  when partition was made.  That being so, the intended transfer of the  said  village  was fully legal and valid  and  did  not contravene  any provisions of the, Constitution.   On  these pleadings, the parties led evidence in the form of maps, and the  case  was argued elaborately before the  learned  trial Judge.  The trial Judge has found against the appellants  on all the important issues.  He has held that the map Ext.  A- 1  on which the appellants substantially based  their  case, was really not admissible under s. 36 of the Indian Evidence Act.  Alternatively, he found that the map was not  reliable and  could not be legitimately utilised for the  purpose  of determining  the merits of the appellants’ contention.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

learned Judge examined the maps produced by the  respondents and  came  to the conclusion that they were  admissible  and reliable.   On examining these maps, the learned Judge  held that Berubari Union No. 12 could be divided half and half as required by the material provisions of the Amendment Act and that  the appellants were not justified in  contending  that the  said provision was not capable of  implementation.   In that behalf, the learned Judge placed considerable  reliance on  the  congregated  map  Ext. 6.  The  learned  Judge  has rejected  the  contention of the appellants that if  a  fair partition  of Berubari Union No. 12 is made as  directed  by the  Amendment Act, no part of Berubari Union No.  12  would fall  to  the south and as such, no part of the  said  Union could  be transferred to Pakistan.  He was not impressed  by the appellants’ argument that the division of Berubari Union No.  12 had to be made by a strict horizontal line;  in  his opinion, the north-east comer of Debiganj Thana mentioned in the  relevant provision was not a geometrical point, but  it gives  some scope for shifting the point of commencement  to suit  the process of division, when the provision says  that the division shall be made horizontal, it only means that it was not to 437 be vertical; it had to be according to the latitude and  not according  to the longitude.  He observed that  the  problem presented  by the relevant provisions of the  Amendment  Act was not intended to be solved as a mathematical problem, and that when the appellants contended that the division had  to be made by a strict mathematical line, they ignored the fact that the said provision made no reference to any  tangential planes or geometrical lines.  On these findings, the learned Judge  rejected  the appellants’ prayer for the issue  of  a writ  in respect of the proposed transfer of Berubari  Union No. 12. In  regard  to  the appellants’ case about  the  village  of Chilahati, the learned Judge held that Chilahati was a  part of  Debiganj .  Thana and had been allotted to the share  of Pakistan  under the Radcliffe Award.  The theory set  up  by the appellants that the village of Chilahati which was being transferred  to Pakistan was different from Chilahati  which was  a  part  of the Debiganj Thana,  was  rejected  by  the learned  Judge; and he found that a small area of 512  acres appertaining  to the said village had not been delivered  to Pakistan  at  the time of the partition; and  so,  when  the respondents  were  attempting  to  transfer  that  area   to Pakistan,  it was merely intended to give to  Pakistan  what really  belonged  to her; the said area was not, in  law,  a part  of  West Bengal, and no question in  relation  to  the constitutional  validity of the said proposed transfer  can, therefore, arise.  The plea of adverse possession which  was made by the appellants alternatively in respect of Chilahati was  rejected  by  the learned Judge.  In  the  result,  the appellants’  prayer for the issue of a writ or order in  the nature of mandamus in respect of the said proposed  transfer of Chilahati was also disallowed. It appears to have been urged before the learned Judge  that in  order to make the transfer of a part of  Berubari  Union No. 1.2 to Pakistan, it was necessary to make a law relating to Art. 3 of the Constitution.  The learned Judge held  that this  plea  had been rejected by this Court in  the  opinion rendered by it on the earlier Reference; and so, an  attempt made by the respondents to implement the material provisions of  the Ninth Amendment Act was fully valid  and  justified. That  is how the writ petition filed by the appellants  came to be dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

The   appellants  then  moved  the  learned  Judge   for   a certificate,  to prefer an appeal to this Court;  and  after the  learned  Judge  was  pleased to  grant  them  the  said certificate,  they have come to this Court by their  present appeal. 438 Before  proceeding to deal with the points which  have  been raided  before  us  by  Mr.  Mukherjee  on  behalf  of   the appellants,  it  is  necessary  to  advert  to  the  opinion expressed  by  this  Court  in Re  The  Berubari  Union  and Exchange  of  Enclaves(1) with a view to  correct  an  error which  has crept into the opinion through inadvertence.   On that occasion, it was urged on behalf of the Union of  India that  if any legislative action is held to be necessary  for the implementation of the Indo-Pakistan Agreement, a law  of Parliament  relation to Art. 3 of the Constitution would  be sufficient  for  the  purpose  and  that  it  would  not  be necessary to take any action under Art. 368.  This  argument was  rejected.   In  dealing with this  contention,  it  was observed  by  this  Court that. the  power  to  acquire  new territory  and  the power to cede a part  ,of  the  national territory  were  outside  the  scope of  Art.  3(c)  of  the Constitution.   This Court then took the view that both  the powers  were  the essential attributes  of  sovereignty  and vested in India as an independent Sovereign Republic.  While discussing the significance of the several clauses of Art. 3 in  that  behalf, it ,seems to have been  assumed  that  the Union  territories  were outside the purview  of  the,  said provisions.   In other words, the opinion proceeded  on  the basis that the word "State" used in all the said clauses  of Art.  3 did not include the Union territories  specified  in the  First Schedule.  Apparently, this assumption was  based on the distinction made between the two categories of terri- tories  by  Art. 1(3).  In doing so, however,  the  relevant provisions  of the General Clauses Act (Act X of 1897)  were inadvertently not taken into account.  Under s. 3(58)(b)  of the  said  Act,  "State" as respects any  period  after  the commencement  of the ’Constitution (Seventh Amendment)  Act, 1956, shall mean a ’State as specified in the First Schedule to  the  Constitution and shall include a  Union  territory. This  provision of the General Clauses Act has to  be  taken into  account  in  interpreting  the  word  "State"  in  the respective   clauses   of  Art.  3,  because   Art.   367(1) specifically  provides  that unless  the  context  otherwise requires,  the General Clauses Act, 1897, shall, subject  to any  adaptations and modifications that may be made  therein under  Art.  372,  apply  for  the  interpretation  of  this Constitution as it applies for ’the interpretation of an Act of the Legislature of the Dominion of India.  Therefore, the assumption  made in the opinion that Art. 3 in  its  several clauses does not include the Union territory is misconceived and  to that extent, the incidental reason given in  support of  the  main conclusion is not  justified.   How-ever,  the conclusion itself was based primarily on the view that (1)  [1960] 3 S.C.R. 250. 439 the  power to cede a part of the national territory and  the power  to  acquire additional territory  were  the  inherent attributes  of sovereignty; and if any part of the  national territory was intended to be ceded, a law relating to Art. 3 alone  would  not be enough unless  appropriate  action  was taken by the Indian Parliament under Art. 368.  It is common ground  that the Ninth Constitution Amendment Act  has  been passed by Parliament in the manner indicated in the  opinion rendered by this Court on the said Reference.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

Reverting  then  to  the  points  urged  before  us  by  Mr. Mukerjee, the first question which falls to be considered is whether the learned trial Judge was in error in holding that the  map Ext.  A-1 on which the appellants had rested  their case  was neither relevant nor reliable.  There is no  doubt that  the sole basis on which the appellants challenged  the validity  of  the intended transfer of a  part  of  Berubari Union  No.  12  was that the division had to be  made  by  a strict horizontal line beginning with the north-east  corner of the Debiganj Thana and drawn east-west, and that if  such a  division is made, no part of Berubari Union No. 12  could go  to Pakistan.  It is common ground that the intention  of the  relevant provision is that after Berubari Union No.  12 is  divided, its northern portion should remain  with  India and  the  southern  portion  should  go  to  Pakistan.   The appellants,  urged that if a horizontal line is  drawn  from the north-east comer of Debiganj Thana from east to west, no part  of  Berubari Union No. 12 falls to the  south  of  the horizontal  line, and therefore, it is impossible to  divide Berubari  Union  No.  12  into two  halves  by  the  process intended by the Amendment Act. Now, the ’wall map’ Ext.  A-1 purports to have been prepared by  Shashibhushan  Chatterjee,  F.R.G.S.  &  Sons,  of   the District  of Jalpaiguri in the scale of 1"=3.8  miles.   The learned  Judge has pointed out that on the record, there  is no  material whatever to vouch for the accuracy of the  map. It  was not stated who Shashibhushan Chatterjee was, and  it is  plain that the map is not in official map.  The  sources on which Mr. Chatterjee relied in preparing the map are  not indicated;   on   the  other  hand,  there   are   intrinsic indications  of  its shortcomings.  The  learned  Judge  has referred  to  these  shortcomings  in  the  course  of   his judgment.   When  the questions about the  admissibility  of this  map  and its validity were argued before  the  learned Judge,  an  attempt was made by the  appellants  to  support their  case  by filing further affidavit made by  Mr.  Sunil Gupta,  the  ’tadbirkar’ of the appellants.  In  this  affi- davit,  it  was  alleged that the said map was  one  of  the numerous 440 maps published by Mr. Shashibhushan Chatterjee and generally offered  for  public sale.  This latter statement  was  made obviously to meet the requirements of s. 36 of the  Evidence Act.   Ms statement has been verified by Mr. Gupta as  "true to his knowledge". but no statement was made to show bow the deponent came to have personal knowledge in the matter.  The map bears no date and no evidence is adduced to show when it was  prepared.  The learned Judge, therefore,  rejected  the statement made by M. Gupta. The  question about the admissibility of the map has  to  be considered  in the light of s. 36 of the Evidence Act.   The said section provides that :- "Statements  of  facts in issue or relevant facts,  made  in published maps or charts generally offered for public  sale, or in maps or places made under the authority of the Central Government  or any State Government, as to  matters  usually represented  or stated in such maps, charts or  places,  are themselves relevant facts." The  map in question clearly does not fall under the  latter category of maps; and so, before it is treated as  relevant, it  must be shown that it was generally offered  for  public sale.  Since the learned Judge has rejected the statement of Mr. Gupta on this point, this requirement is not  satisfied. We see no reason why the view taken by the learned Judge  in regard to the credibility of Mr. Gupta’s affidavit should be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

reversed.   So,  it follows that without proof of  the  fact that  the maps of the kind produced by the  appellants  were Generally  offered  for  public sale,  Ext.   A-1  would  be irrelevant. It is true that s. 83 of the Evidence Act provides that  the Court shall presume that maps or plans purporting to be made by  the  authority of the Central Government  or  any  State government were so made, and are accurate; but maps or plans made  for  ,he purposes of any cause must be  proved  to  be accurate.   The  presumption of accuracy can thus  be  drawn only  in  favour  of maps  which  satisfy  the  requirements prescribed by the first part of s. 83.  Ext.  A-1  obviously does  not fall under the category of the said maps, and  so, there  can  be  no question of drawing  any  presumption  in favour of the accuracy of the said map.  In fact, as we have already  indicated,  the learned Judge has given  very  good reasons  for  showing  that the map does not  appear  to  be accurate.   Therefore,  even  if  the  map  is  held  to  be relevant,  its accuracy is not at all established;  that  is the conclusion of the 441 learned Judge and Mr. Mukerjee has given us no  satisfactory reasons for differing from the said conclusion. Mr.  Mukerjee  then contended that in the  present  case  it should  be  held  that  on  the  allegations  made  by   the appellants  and on the evidence such as they have  produced, the onus to prove that the relevant portion of the Amendment Act  was  capable  of implementation,  had  shifted  to  the respondents.  lie  argues  that the  location  of  different villages in different Thanas is a matter within the  special knowledge  of  the  respondents, and under  s.  106  of  the Evidence Act, they should be required to prove the  relevant facts  by leading adequate evidence.  He also  attempted  to argue  that  the  respondents  had  deliberately  suppressed material evidence from the Court. The  learned Judge was not impressed by these arguments  and we  think,  rightly.  It is true that the official  maps  in regard to the area with which we are concerned are not  easy to  secure.   It  is not, however, possible  to  accept  the theory  that they have been deliberately withdrawn from  the market In fact, during the course of the hearing of the writ petition, the appellants themselves produced two maps  Exts. A-7 and A-8.  Besides, as the learned Judge points out, when the case was first argued before him, the learned  Attorney- General  appearing for the respondents produced most of  the maps relied upon by him, and the learned Judge directed that they  should be kept on the record to enable the  appellants to  take their inspection.  Under these circumstance,-,,  we do not see how the appellants can complain that the  respon- dents have suppressed evidence, or can ask the Court to hold that  the  onus  was on the respondents to  prove  that  the relevant provisions of the Amendment Act can be implemented. The  onus must primarily lie on the appellants to show  that what is attempted to be done by the respondents in pursuance of  the  provisions  of  the Amendment  Act  is  illegal  or unconstitutional;  and  if  they are  not  able  to  produce evidence  in support of their plea, they cannot require  the respondents to show that the plea made by the appellants  is untenable.   The location of the villages in  the  different Thanas  cannot be regarded as a matter within the  exclusive knowledge  of the respondents and in any case, it has to  be proved  by  the production of reliable maps.   Both  parties have produced maps; and the learned trial Judge has  refused to  accept the maps produced by the appellants  as  reliable and  has  treated the maps produced by  the  respondents  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

worthy of credence.  Under these circumstances, no  question of onus really arises. 442 The  respondents  have produced eight maps in all.   One  of them  purports  to be a congregated map  of  Police  Station Jalpaiguri,  Pochagar, Boda and Debiganj made and  published under  authority of Government dated September, 1930.   With regard  to  the  congregated  map,  the  learned  Judge  has observed : "One has only to see Ext. 2 map of Police Station Jalpaiguri  and the congregated map Ext. 6 to find that  the north eastern hump of Debiganj is not of the shape shown  in the  wall map of Sashi Bhushan Chatterjee Ext.  A-1.  It  is wholly  different." That is one of the reasons given by  the learned Judge for disbelieving the appellants’ map Ext.   A- 1.   The  learned Judge then proceeded to compare  the  maps produced  by the respondents and the congregated map of  the District  of  Jalpaiguri and found that they  tally  in  all details.    Having  thus  examined  the  relevant   material produced  before  , the learned Judge came to  the  definite conclusion that the congregated map had been reasonably  and accurately  drawn and should be relied upon.  In  fact,  the learned Judge has given six different reasons for  rejecting the  map  produced  by  the  appellants,  and  he  found  no difficulty   in   accepting  the  maps   produced   by   the respondents.   The learned Judge thought that the case  made out by the appellants was entirely misconceived since it was solely  based  on an incorrect map.  Having  regard  to  the finding  made by the learned Judge on these maps, we do  not see   how  the  appellants  can  contend  that   they   have established  their  plea that the relevant  portion  of  the Constitution Amendment Act is incapable of implementation. It is true that the appellants contended before the  learned Judge  that  the  Agreement  in  question  requires  that  a geometrical point be fixed at the north eastern extremity of Debiganj  and  then a geometrical line be drawn in  a  plane tangential to that geometric point, in the direction east to west,  at  an  angle of 90 to the vertical,  and  this  line should  divide  Berubari Union No. 12 into two  exact  equal halves.  The learned Judge found no difficulty in  rejecting this contention, and we are satisfied that the conclusion of the learned Judge is absolutely right. It would be recalled that the relevant portion of the Agree- ment  which had been included in the Second Schedule to  the Ninth Amendment Act, in substance, provides for the division of  Berubari Union No. 12 half and half.  This division  has to be so made that the southern portion goes to Pakistan and the northern portion which is adjacent to India remains with India.    When  it  is  said  that  the  division  will   be "horizontal", starting from the north-east comer of Debiganj Thana, it is not intended                             443 that it should be made by a mathematical line in the  manner suggested  by the appellants.  In fact, the  provision  does not refer to any line as such; it only indicates broadly the point  from which, the division has to begin-east  to  west, and  it emphases that in making the said division, what  has to  be borne in mind is the fact that the Union in  question should  be divided half and half.  Even this  division  half and  half cannot, in the very nature of things, be half  and half  in  a mathematical way.  The latter provision  of  the Agreement  in relation to Cooch Behar also gives  additional guidance which has to be taken into account in effecting the partition of Berubari Union No. 12.  Therefore, the  learned Judge  was plainly right in rejecting the contention of  the appellants  that a straight horizontal line has to be  drawn

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

from  the  north-east comer of Debiganj Thana  in  order  to effect the, division of Berubari Union No. 12.  So, there is no substance in the contention raised by Mr. Mukerjee before us that the learned Judge should have issued a writ or order in  the  nature  of mandamus  prohibiting  the  division  of Berubari Union No. 12. In  the  course  of his arguments,  Mr.  Mukerjee  no  doubt faintly suggested that the Schedule annexed to the Amendment Act  should  itself have shown how the division  bad  to  be made.   In other words, the argument was that  more  details should have been given and specific directions issued by the Ninth  Amendment Act itself as to the manner of  making  the division.  This contention is clearly misconceived and  must be  rejected.  All’ that the relevant provision has done  is to record the decision reached by the Prime Ministers of the two  countries and make it effective by including it in  the Constitution Amendment Act as suggested by this Court in its opinion on the Reference in respect of this case. That takes us to the case of Chilahati.  It was urged before the learned trial Judge that Chilahati admeasuring about 512 acres which is proposed to be transferred to Pakistan is not a part of Debiganj Thana, but is a part of thana  Jalpaiguri and  as such, is outside the Radcliffe Award.  It is  common ground that Chilahati which is a part of Debiganj Thana  has been  allotted’  to  Pakistan by the said  Award.   But  the contention  is that what is being transferred now is  not  a part  of the said Chilahati The learned Judge  has  rejected this  contention broadly on two grounds.  He has  held  that the  plea  that there are two Chilahatis, one,  situated  in Debiganj  Thana, and the other in Thana Jalpaiguri, was  not clearly made out in the writ petition as it was filed.  This plea was introduced by Ram Kishore Sen and Dhaneswar Roy in 444 their  affidavit  filed on February 7,  1964.   The  learned Judge  has  found that this theory is  plainly  inconsistent with  the maps produced in the case. The maps show only  one Chilahati  and  that, according to the learned Judge,  is  a part   of  Debiganj  Police  -Station.   This   finding   is substantially based on the affidavit made by Mr. C. S.  Jha, Commonwealth Secretary in the Ministry of External  Affairs, and the notification filed along with it.  This notification which has been issued on July 28, 1925, shows that Chilahati was to form part of Debiganj Police Station.  It stated that its  serial number in the General Jurisdiction List  is  61. The Jurisdiction List relating to Thana Jalpaiguri was  also produced.    The   relevant  entry  at  p.  13   shows   the Jurisdiction  List No. as 248, and in the last  column,  the Police Station under which the village of Chilahati is shown to  exist is Debiganj; its area is 10,006.75 acres which  is equal  to  roughly 15 to 16 square mile& In fact,  the  maps Exts.   A-7 and A-8 produced by Mr. Mukerjee show  that  the Jurisdiction  List number of Chilahati is 248, and that,  in turn, proves the respondents’ case that Chilahati is  within the jurisdiction of Police Station Debiganj.  The two survey maps produced by the respondents Exts. 8 and 9 also corrobo- rate the same conclusion.  When these two maps were put side by  side, the learned Judge found that their  edges  exactly fit into one another. Mr.  Mukerjee very strongly relied on certain private  docu- ments  produced  by the appellants in the form  of  transfer deeds  In  these  documents, no doubt,  Chilahati  has  been referred  to as forming part of District Jalpaiguri.   These documents  range between 1925 A.D. to 1945 A.D. It may  well be  that  a  part of this  elongated  village  of  Chilahati admeasuring  about  15  to 16 square  miles  may  have  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

described in certain private documents as falling under  the district of Jalpaiguri.  But, as pointed out by the  learned Judge, in view of the maps produced by the respondents it is difficult  to attach any importance to the recitals made  by individuals in their respective documents which tend to show that  Chilahati  is  a part of  Police  Station  Jalpaiguri. Indeed, no attempt was made to identify the lands concerning the  said  deeds  with the Taluka maps with  the  object  of showing  that there was another Taluka Chilahati  away  from Berubari Union No. 12.  The learned Judge has also  referred to  the fact that Mr. Mukerjee himself relied upon a map  of Taluka Chilahati which is in Police Station Debiganj and not Jalpaiguri.   Therefore,  we see no  justification  for  Mr. Mukerjee contention ,that the learned Judge was in error  in rejecting  the  appellants, -case that a part  of  Chilahati which is being handed over to 445 Pakistan  does  not pertain to village  Chilahati  which  is situated  in  Debiganj  Police Station, but  is  a  part  of another  Chilahati in the district of Jalpaiguri.  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 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 respondents now propose to do is to transfer to Pakistan the area  in  question  which really belongs  to  her.   In  our opinion, this conduct on the part of the respondents  speaks for their fair and straightforward approach in this matter. That  takes us to another contention raised by Mr.  Mukerjee in  respect  of the village of Chilahati.   He  argues  that having regard to the provisions contained in Entry 13 in the First Schedule to the Constitution of India, it must be held that  even  though  a portion of Chilahati  which  is  being transferred  to Pakistan may have formed part  of  Chilahati allotted  to Pakistan under the Radcliffe Award, it has  now become a part of West Bengal and cannot be ceded to Pakistan without following the procedure prescribed by this Court  in its opinion on the earlier Reference.  Entry 13 in the First Schedule  on which this argument is based,  provides,  inter alia,   that  West  Bengal  means  the   territories   which immediately  before  the commencement of  this  Constitution were either comprised in the Province of West Bengal or were being administered as if they formed part of that  Province. Mr.  Mukerjee’s  argument is that it is common  ground  that this  portion of Chilahati was being administered as  if  it was  a part of the Province of West Bengal; and so, it  must be  deemed  to have been included in the territory  of  West Bengal within the meaning of the First Schedule, and if that is  so, it is a part of the territory of India under Art.  1 of  the  Constitution.  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 65Sup.CI/65 --14

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

446 Province"; what do the words "as if" indicate in the context ?  The interpretation of this clause necessarily takes us to its previous history. First  Schedule enumerated Part A States.  The territory  of the  State  of  West Bengal was one  of  such  States.   The Schedule  then provided the territory of the State  of  West Bengal shall comprise the territory which immediately before the  commencement of this Constitution was comprised in  the Province  of  West Bengal.  The territory of  the  State  of Assam was differently described; but with the description of the  said  territory  we are not concerned  in  the  present appeal.   The  territory of each of the -other  States  was, however,  described  as  comprising  the  territories  which immediately  before  the commencement of  this  Constitution were  comprised  in  the  corresponding  Province  and   the territories which, by virtue of an order made under  section 290A of the Government of India Act, 1935, were  immediately before  such  commencement  being administered  as  if  they formed  part of that Province. It is significant  that  this descriptive  clause  was  not  used  while  describing   the territory of the State of West Bengal by the Constitution as it was first enacted. The  Constitution (Amendment of the First and  Fourth  Sche- dules)  Order 1950, however, made a change and  brought  the territory  of  the State of West Bengal into line  with  the territories of the other States covered by the clause  which we  have just quoted.  This Order was passed on January  25, 1950, and it deleted the paragraph relating to the territory of  the State of West Bengal, with the result that the  last clause  of the First Schedule became applicable to  it.   In other words, as a result of the said Order, the territory of the  State  of  West Bengal must be deemed  to  have  always comprised   the  territory  which  immediately  before   the commencement  of  the  Constitution  was  comprised  in  the Province  of West Bengal, as well as the territories  which, by  virtue of an order made under s. 290A of the  Government of   India   Act,  1935,  were   immediately   before   such commencement  being administered as if they formed  part  of West Bengal. Let us now refer to s. 290A of the Government of India  Act, 1935.  The said section reads thus               "Administration of certain Acceding States  as               a Chief Commissioner’s Province or as part  of               a    Governor’s   or   Chief    Commissioner’s               Province:-               447               (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-               (a)   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               (b)   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." It  will be noticed that the significant and material  words with  which we are concerned have been used in  clauses  (a) and (b) of s. 290A and have been reproduced in the  relevant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

clause  of  the First Schedule to the Constitution.   It  is well  known that at the relevant time, merger of States  was taking  place on a large scale and the covenants which  were being executed in that behalf conformed to the same pattern. The  Order No. S.O. 25 made by the Governor-General on  July 27,  1949 and published for general information provided  by clause  3  that  as  from  the  appointed  day,  the  States specified in each of the Schedules shall be administered  in all  respects  as  if  they  formed  part  of  the  Province specified  in the heading of that Schedule.  The  effect  of this  clause  was  that when any  territory  merged  with  a neighbouring State, it came to be administered as if it  was a  part  of.  the said State.  That is the  purport  of  the relevant  clause of the covenants signed on the occasion  of such mergers.  In fact, a similar clause was included in the State Merger (West Bengal) Order, 1949. 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 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.  ’Me physical  fact of administering the said area 448 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  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  was 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 administered by the West Bengal Government,  that area became a part of West  Bengal  within the  meaning  of  Entry 13 in 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. Mr. Dutt, who followed Mr. Mukerjee, attempted to argue that the  village of Chilahati has become a part of  West  Bengal and as such, a part of the Union of India because of adverse possession.  He contends that ever since the Radcliffe Award was  made and implemented, the possession of West Bengal  in respect  of  this  area is adverse; and he  argues  that  by adverse  possession, Pakistan’s title to this area has  been lost.  We do not think it is open to the appellants to raise

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

this  contention.  It has been fairly conceded by  Mr.  Dutt that no such plea had been raised in the writ petition filed by  the appellants.  Besides, it is plain that  neither  the Union  of  India,  nor the State of West  Bengal  which  are impleded  to the present proceedings make such a claim.   It would  indeed  be surprising that even though the  Union  of India  and the State of West Bengal expressly say that  this area  belongs to Pakistan under the Radcliffe Award and  has to  be  delivered over to Pakistan, the  petitioners  should intervene and contend that Pakistan’s title to this property has been lost 449 because West Bengal had been adversely in possession of  it. It is, therefore, unnecessary to examine the point whether a plea of this kind can be made under international Law and if yes, whether it is sustained by any evidence on the record. The  result  is, the appeal fails and is  dismissed.   There would  be no order as to costs. Appeal dismissed. 450