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.  

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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  

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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  

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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  

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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  

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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  

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(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:

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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?

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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  

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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  

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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:

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                                       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.  

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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  

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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  

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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  

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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…”

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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  

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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  

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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.      

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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  

29

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  

30

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  

31

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  

32

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  

34

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

37

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

38

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  

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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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