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. BALAKRISHNA N, CJI

1. This is a suit filed under Article 131 of the Constitution of

India by the State of Orissa (plaintiff) against the State of

Andhra Pradesh (defendant) for a declaration that the Borra

Group of villages, also referred to as ‘Borra Mutha’, form part of

the State of Orissa. Admittedly, the group of villages is located

within the geographical limits of the State of Andhra Pradesh.

1

2. The State of Orissa in its plaint has averred that Borra

Mutha [hereinafter ‘disputed area’) formed part of the Jeypore

(Impartible) Estate at the time of the creation of the province of

Orissa in 1936 by way of Government of India (Constitution of

Orissa) Order, 1936 [hereinafter ‘Orissa Order’] and that the

said Estate subsequently became part of the modern-day State

of Orissa after the abolition of the Zamindari system. The

plaintiff has submitted that the Province of Orissa, at the time

of its creation, had included the disputed area as contemplated

in the First Schedule, Part I, clause 2 (iv) read with Section 3 (1)

of the Orissa Order. Albeit, the disputed area is not territorially

contiguous with the State of Orissa, yet the plaintiff state claims

that it had remained within its administrative jurisdiction when

the Province of Orissa was created and later on when the

Constitution was enforced. It was also averred in the plaint that

the former province of Madras had admitted that the disputed

area fell within the administrative jurisdiction of the State of

Orissa. The plaintiff has also alleged that since the creation of

the State of Andhra (in 1953) and later on after the creation of

the State of Andhra Pradesh in 1956, the defendant state has

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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

4

the plaintiff may be found entitled in the circumstances

of the case and in the interest of justice.”

4. The defendant (State of Andhra Pradesh) in its written

statement has taken the preliminary objection that the prayer

sought by the plaintiff does not fall within the scope of the

original jurisdiction of this Court as contemplated in Article

131, since that provision limits the jurisdiction by expressly

stating that the latter is ‘subject to the other provisions of the

Constitution’. In this regard, attention has been drawn to

Article 1(2) of the Constitution which provides that the

territories of States shall be as specified in the First Schedule to

the Constitution. In view of this provision, it has been urged

that the territories comprising the State of Orissa have already

been specified in Entry No. 10 of the First Schedule to the

Constitution and therefore this suit is not maintainable. The

defendant has taken the stand that the province of Orissa was

constituted under the Orissa Order, issued on 3-03-1936 by His

Majesty in exercise of the powers conferred by Section 289 (ii) of

the Government of India Act, 1935. Section 3(2) of the Orissa

Order had provided that if a boundary dispute arose in respect

5

of the specified territories, then the decision of the Governor

General would be final. Therefore, it was contended that since

the plaintiff state had not claimed administrative jurisdiction

over the disputed area and neither did it assert its claim before

the Governor General, no relatable question can be raised after

the enforcement of Article 1(2) of the Constitution. Furthermore,

it was reasoned that the territories of all the States had been

specified in the First Schedule to the Constitution, which made

it amply clear that the disputed area fell in the erstwhile

Province of Madras, the relevant district of which is now an

integral part of the State of Andhra Pradesh. In response to the

plaint, it has been reasoned that even if this Court’s original

jurisdiction under Article 131 were to be assumed, reference

must be made to Section 3(2) of the Orissa Order which

controls the operation of Section 3(1) of the same which defines

and delimits the area to be included in the Province. As a

natural corollary to this, if a particular area is outside the

external land boundary as described in Part I of the First

Schedule to the Orissa Order, it cannot form part of the State of

Orissa. It has been contended that the reference to Jeypore

6

(Impartible) Estate must be construed in view of the fact that

the original Zamindari had been included in the Schedule to the

Madras Impartible Estate Act II of 1904. The holder of the

Estate made subsequent acquisitions which were geographically

situated outside the original Zamindari and the holders might

not have intended the inclusion of those acquisitions in the

original Zamindari. It has also been averred by the defendant

that it firmly believes that the disputed area was a subsequent

acquisition which was surrounded by another Zamindari and it

formed a separate enclave. The defendant has further submitted

that its administration of the disputed area has always been

lawful and that the plaintiff had never exercised administrative

jurisdiction over the disputed area, even before the formation of

the State of Andhra in 1953.

5. Based on the pleadings of the parties, the following issues

have been framed for adjudication:

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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?

8

7)Did the disputed area form a part of the Jeypore

(Impartible) Estate originally and subsequently and does it

form part of the province of Orissa?

8)Did the former Province of Madras and subsequently the

State of Madras admit that the disputed area formed part of

the plaintiff state?

9)Whether the disputed area remained under the

administration of the Province of Orissa when the said

Province was formed and thereafter the State of Orissa?

10)In view of the letter dated 7.7.1962 by the Government of

Orissa addressed to the Government of India (Annexure “D” to

the Plaint), can the Plaintiff lay any claim at all to the said

area after 1950?

11) Whether the expression the Jeypore (Impartible) Estate

means the Estate as included in the Schedule to Madras

Impartible Estate since the latter includes subsequent

acquisitions of various properties situated outside the original

Estate and in different Districts and Provinces?

12)Whether the defendant or its predecessor State or

Province has always exercised administrative control over

9

the disputed area and whether the said area was at all

material times treated as if it formed part of the defendant’s

State?

13)Whether in any event the Defendant has acquired the

right to administer the area by adverse possession?

14)Whether the suit is barred either because of waiver or

acquiescence on the part of the plaintiff as it did not raise any

such dispute under Section 3(3) of the Order under which the

Province of Orissa was constituted?

15)Whether the plaintiff is entitled to any relief and if so to

what relief?

Re: Issue I

6. As noted earlier, the State of Orissa was constituted under

the Orissa Order, which came into effect on 1.4.1936. The

Borra Group of Villages (i.e. Borra and twelve hamlets)

admittedly are not territorially contiguous with the main land

of Orissa. The interstate boundary is 11 kilometers away

(aerial distance) from Borra and its surrounding villages. This

10

group of villages is situated within the geographical limits of

the State of Andhra Pradesh which earlier formed part of

Jeypore (Impartible) Estate, a Zamindari, before the creation of

State of Orissa. Part II of the Orissa Order provided the

following:

PART II

Definition of Orissa and Date of Separation

3. (1) The Province of Orissa (hereafter in this Order

referred to as “Orissa”) shall consist of the areas specified

in Part I of the First Schedule to this Order, and

accordingly as from the date of the coming into operation

of the provisions of sub section (1) of section two hundred

and eighty-nine of the Act relating to the formation of the

Province of Bihar and Orissa, those areas shall cease to

form part of the Province of Bihar and Orissa, the

Presidency of Madras and the Central Provinces

respectively.

3. (2) The external land boundaries of Orissa shall be as

described in Part II of the said schedule.

3. (3) If any question arises with respect to the

boundaries as existing at the date of this Order, of any

district, Agency, taluk, village, estate, forest or other area

referred to in the said Schedule or otherwise with respect

to the delimitation of the boundary of Orissa, that

question shall be referred to the Governor- General,

whose decision thereon shall be final.

_________

The first schedule to the Orissa Order described the areas

which would constitute the Province of Orissa. The relevant

provisions are reproduced below:

11

First Schedule

Part – I

Areas comprised in the province of Orissa

1. That portion of the Province of Bihar and Orissa which

is at the date of this Order known as Orissa division

thereof.

2. Areas transferred from the presidency of Madras:-

(i) The Ganjam Agency Tracts;

(ii) the following areas in the non- Agency portion of the

Ganjam district viz., the taluks of Ghumsur, Aska,

Surda, Kodala and Chatrapur and so much of the taluks

of Ichapur and Berhampur as lies to the north and west

of the line described in part II of this schedule;

(iii) So much of the Parlakimedi Estate as lies to the

north and east of the said line; and

(iv) The following areas in the Vizagapatam district, that

is to say, the Jeypore (Impartible) Estate and so much of

the Pottangi Taluk as is not included in that estate.

After the enforcement of the Constitution of India, the

territorial extent of the State of Orissa was specified in Entry

No. 10 of the First Schedule to the Constitution. The State of

Orissa has prayed for a declaration that the main village Borra

along with 12 hamlets (Borra Mutha) is a part and parcel of

the plaintiff’s territory and that the plaintiff has the right to

possess and administer the disputed area to the exclusion of

the defendant.

12

7. The defendant, in light of Article 131 and the proviso to the

same Article has contended that this Court lacks jurisdiction

and the suit is liable to be dismissed on the ground of lack of

jurisdiction. Article 131 provides the following:

“131. Original Jurisdiction of the Supreme Court.

– Subject to the provisions of this Constitution, the

Supreme Court shall, to the exclusion of any other

court, have original jurisdiction in any dispute-

(a) …

(b) …

(c) between two or more States,

If and in so far the dispute involves any question

(whether of law or fact) on which the existence or extent

of a legal right depends:

Provided that the said jurisdiction shall not extend to a

dispute arising out of any treaty, agreement, covenant,

engagement, sanad or other similar instrument which,

having been entered into or executed before the

commencement of the Constitution, continues in operation

after such commencement, or which provides that the said

jurisdiction shall not extend to such a dispute.”

(emphasis supplied)

8. The defendant’s objection to the maintainability of the suit

under Article 131 is on two grounds. The first objection is that

the exercise of original jurisdiction under Article 131 is subject

to the other provisions of Constitution, and therefore this

Court is barred from adjudicating delicate issues relating to

13

state boundaries since Article 1(2) read with Entry 10 of the

First Schedule to the Constitution conclusively addresses this

aspect. The second strand of the objection is that as per

Article 3 of the Constitution, only the Union Parliament is

competent to increase, diminish or alter the boundaries of any

State in the manner provided. In response to this reasoning,

the plaintiff has pointed to the contents of the prayer to assert

that there is no intention to seek an alteration of boundaries

but instead, the prayer simply seeks a declaration from this

Court that the disputed area comes within the plaintiff State

as contemplated in Entry 10 of Schedule I to the Constitution

and that the plaintiff has the right to possess and administer

the disputed area to the exclusion of the defendant. The

plaintiff has also prayed for a declaration that the defendant is

liable to vacate the disputed area. Since plaintiff has not

sought any increase, alteration or diminishing of any area but

only a declaration that the disputed area comes under the

administrative jurisdiction of the plaintiff state, we are inclined

to agree with the view that Article 131 itself does not put

fetters on this Court to decide this original suit and there

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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

15

which the Orissa government deemed fit. In respect of the

correspondence by way of this letter, the operative question for

us is whether the said letter comes within the expression ‘other

similar instrument’ which appears in the Proviso to Article 131

of the Constitution. If the correspondence does indeed come

within the said expression, this Court cannot decide the present

suit on merits. For guidance on how to interpret this

expression, we can refer to the observations of this Court in

Sree Mohan Chowdhury v. The Chief Commissioner, Union

Territory of Tripura, [1964] 3 SCR 442, (B.P. Sinha, C.J., at p.

454):

“Is the President’s Order in question an “instrument”

within the meaning of the section? The General Clauses

Act does not define the expression “instrument”. Therefore,

the expression must be taken to have been used in the

sense in which it is generally understood in legal parlance.

In Stroud’s Judicial Dictionary of Words and Phrases

(Third Edition, Volume 2, page 1472), “instrument” is

described as follows:

“An ‘instrument’ is writing, and generally imports a

document of a formal legal kind. Semble, the word

may include an Act of Parliament… (11)

Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s.2

(xiii), ‘instrument’ includes deed, will, inclosure,

award and Act of Parliament…”

16

The expression is also used to signify a deed interpartes or

a charter or a record or other writing of a formal nature.

But in the context of the General Clauses Act, it has to be

understood as including reference to a formal legal writing

like an Order made under a statute or subordinate

legislation or any document of a formal character made

under constitutional or statutory authority…”

In P. Ramanatha Aiyar, Law Lexicon, 2

nd

edn. (Wadhwa & Co.,

1997) at p. 957, the word “instrument” has been defined as:

“a writing as the means of giving formal expression to

some act, contract, process, or proceeding as a deed,

contract, writ etc. ‘A writing given as the means of

creating, securing modifying, or terminating a right or

affording evidence; a deed of conveyance, a grant, a patent,

an indenture etc. A formal legal writing e.g. a record deed

or written instrument. ‘Anything reduced to writing;

written instrument, or instrument of writing; more

particularly, a document of formal or solemn character.’

Instrument is a word most frequently used to denote

something reduced to writing, as a means of evidence, and

writing as the means of giving formal expression to some

act; a writing expressive of some act, contract, process or

proceeding; a writing containing any contract or order.”

10. In respect of the letter exchanged between the Secretary to

the Government of Madras and the Chief Secretary to the

Government of Orissa, it must be noted that the letter simply

listed the names of the villages which would fall under the

jurisdiction of the Araku police station (which after the

creation of the Province of Orissa, remained under the

17

Chintalapalli circle of Vizagapatam district in the erstwhile

Madras Presidency), and those which would fall under the

jurisdiction of the then Government of Orissa. After

scrutinizing the contents of this letter, we find that it cannot

be described as an ‘other similar instrument’ in the legal

sense. The letter merely communicated the intentions of the

Madras Government at that point of time and it was not

issued under the authority of a legislation or subordinate

legislation. Neither can it be described as ‘a document of a

formal character which was made under constitutional or

statutory authority’. In the light of this finding, we hold that

the original jurisdiction of this Court is not barred with

reference to the proviso of Article 131 of the Constitution. We,

therefore, hold this issue of maintainability to be in favour of

the plaintiff.

Re: Issue 2

11. With respect to this issue, the defendant has averred in

the written statement that under the Orissa Order, the

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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.

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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

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Government of Andhra Pradesh sent a reply, vide Letter No.

2504-J/62.8 (dated 30-03-1963), (Exh. 3) wherein it was

stated:

“Ever since 1936 this area has been under the

continuous management and administration

successively of Madras, Andhra and Andhra Pradesh

Govts. and the Orissa Government has never in

the past exercised any jurisdiction or control over the

area.”

Exh. 3 also cited the order of the Andhra Pradesh High Court

in W.P. No. 539/1957, wherein it had been declared that a

map was prepared at the time of the promulgation of the

Orissa Order, which clearly indicated that the disputed area

fell within the territory of the erstwhile Madras Presidency.

Subsequently, the Government of India, vide its Letter No.

38/4/62-SR(R), [Exh. 2] sent a reply to the Government of

Orissa after taking into account the contents of the letter sent

by the Government of Andhra Pradesh, the relevant extracts of

which are as follows:

“The letter shows that the area claimed by the Orissa

Government being well within the adjoining state

could not have been intended to form part of Orissa and

that the intention is borne out by the description of

external land boundaries of Orissa in part II of the First

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Schedule read with para 3 (2) of the Government of India

(Constitution of Orissa) Order, 1936. In view of this, the

Government of India regret their inability to advise the

Andhra Pradesh Government to transfer the Borra

Muttah area to Orissa.”

After examining Section 3 of the Orissa Order along with the

First Schedule to the same and perusing the correspondence

exchanged between Government of Orissa, Government of

India and Government of Andhra Pradesh, we find the

contentious issues to be in favour of the defendant.

Re: Issue 5

19. In view of what has been stated by us while answering

Issues 6, 8, 9 and 10, this issue does not need any further

consideration and this issue is accordingly answered in favour

of the defendant.

Re: Issues 7, 11 and 12

20. These issues have to be answered on the basis of the

assertions made in the plaint, written statement as well as the

rejoinder to the written statement. The defendant has averred

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

39

Andhra Pradesh. It is also pertinent to note that the plaintiff

could not establish that the inhabitants of the disputed area

recognize Oriya as their first language.

27. Therefore, in the light of these findings and considerations,

we reject the prayer of plaintiff and the suit is dismissed

accordingly. There will be no order as to costs.

….………………….…

CJI

[K.G.BALAKRISHNAN]

..…

………………………J.

[R.V. RAVEENDRAN)

…………….…………….J.

[DALVEER BHANDARI]

New Delhi

May 5, 2010

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