A

B

UNION OF INDIA AND ORS.

v.

SUKUMAR SENGUPTA AND ORS.

MAY 3, 1990

[SABYASACHI MUKHARJI, CJ., M.H. KANIA,

K. JAGANNATHA SHETIY, K.N. SAIKIA AND

S.C. AGRAWAL, JJ.]

Constitution of India, 1950: Articles 1, 3, 368 and Constitution ;.·

(Ninth Amendment) Act, 1960-Agreements of 1974 and 1982- Y

C Implementation of-Teen Bigha-Whether involves cession of Indian

territory

to Bangladesh-Sovereignty over Dahagram and

Angarpota-Whether

arises.

The Indian Independence Act, 1947 had set up two independent

dominions known as

'India' and 'Pakistan'. A Boundary Commission

D was appointed to determine the boundaries of the two dominions.

As a

result

of its Award, certain areas of India became, after the partition,

enclaves in East Pakistan. Similarly, certain East Pakistan enclaves

were found in India. Dehagram and Angarpota were two such Pakistani

enclaves in India.

E

F In view of the Award, Berubari

Union No. 12 was treated as part

of the Province of West Bengal. Near about 1952, Pakistan· alleged that

under the Award the Berubari Union should really have formed part of

East Bengal. Eventually, in

1958 the Prime Ministers of India and

Pakistan entered into

an agreement settling certain boundary disputes.

The agreement inter alia provided for the division of Berubari

Union

No. 12 between India and Pakistan and exchange oflndian enclaves in

Pakistan and Pakistan enclaves in India.

Donbts arose regarding the implementation

of the 1958

agreement. Therefore, in exercise of the powers conferred upon him by

clause ( 1) of Article 143 of the Constitution, the

President of India

G

referred the matter to the

Supreme Court.

In the light of the opinion rendered by the Supreme Court in Re:

The Berubari Union and Exchange of Enclaves, [1960] S.C.R. 3 250, the

Constitution (Ninth Amendment) Act, 1960 was passed to give effect to

'

r

H

the transfer of the territories as envisaged in the 1958 agreement. ,~

24

I

U.0.1. v. SUKUMAR SENGUPTA 25

• By an official notification, 17th January 1961 had been appointed

as the day for the transfer of the territories of India by way of exchange

with the territories of Pakistan in the western region.

No further

appointed day was notified so far as the eastern border

of India was

concerned.

A

In 1966, writ petitions challenging the validity of the transfer of B

territories as stipulated in the Ninth Amendment were dismissed by this

Court in Ram Kishore Sen &

Ors. v. Union of fodia, l1966]

1 S.C.R. 430.

On or about the 16th May, 1974 an agreement was entered into

between the Prime Ministers

of India and Bangladesh. This agreement

inter alia provided that India will retain half of Berubari Union No. 12,

which

under the 1958 agreement was to be transferred to Pakistan, and

in exchange Bangladesh will retain the

Daha~ram and Angarpota

enclaves. The agreement further provided that India

will lease in

perpetuity to Bangladesh a small area near 'Tin Bigha' for the

purpose of connecting Dahagram and Angarpota with Panbari Monza

of Bangladesh. The 1974 agreement, however remained

unimple­

~ented.

Thereafter, in October 1982 an u11derstanding was reached

between the two governments in respect of 'lease in perpetuity'

by

India of the said area near 'Tin Bigha' to enable the Bangladesh

govern­

ment to exercise her sovereignty over Dabagram and Angarpota. It was

further agreed that the 1982 agreement would be an integral partofthe

earlier agreement of 197 4. It was also agreed that the sovereignly over

the leased area shall continue to vest in India.

Clause 9 of the

1982

~greement provided that India would have no

jurisdiction over Bangladesh nationals in respect of any offence

committed in the area, and the same shall be dealt with

by the

Bangladesh law enforcing agency only.

In 1983, Writ Petitions were tiled in the Calcutta High Court

challenging the validity of the agreement. The learned Single Judge

dismissed the writ petitions

(Sugandhra

Roy v. Union of India, A.I.R.

1983 Cal. 483). The learned Single Judge held that

(i) Ninth

Amend­

ment in so far as it related to exchange of the enclaves in eastern India

had not come into being; (ii) implementation of the agreements of 1974

and 1982 did not involve cession of any Indian territory to Bangladesh;

. (iii) no exclusive

or legal possession of Tin Bigha was

being transferred

c

D

E

F

G.

H

26 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

A to Bangladesh; (iv) there was no question of transfer of sovereignty of

India wholly or partially in respect of the said area; (v) certain

privileges only had been conferred on Bangladesh and its nationals

under the said agreement which otherwise they would not have; (vi) as

Dahagram and Angarpota would remain

as parts of Bangladesh

terri­

tory, the agreements were necessary to enable Bangladesh to exercise its

B sovereignty in full over the said enclaves; and

(vii) in spite of the said

agreements India would retain sovereignty, ownership and control over

Tin Bigha.

Regarding clause 9 of the

1982 agreement, the learned

Single

Judge held that the conferment of this power under the agreement to

Bangladesh and abdication of any such power by India, by itself, did

C not amount to transfer of sovereignty in respect of the area. The learned

Single Judge, however, noted that merely by virtue of the agreement

and without any amendment of the existing Indian Jaw it might not be

legally possible to take away existing jurisdiction of the Jaw enforcing

agencies

of India or the Indian courts.

D

An appeal was filed before the Division Bench. It was contended

before the Division Bench that

(i) the 1974 agreement speclt1cally

pro­

vided that the same would b.e suitably retified but it had not been

ratified; (ii) in the absence of any ratification of the agreement of

1974,

India and Bangladesh conld not enter into the subsequent agreement in

E 1982 on the basis of the agreement of 1974; (iii)

by reason of the

agree­

ment of 1958 between India and Pakistan, which was sanctioned by the

Ninth amendment to the constitution, there

was automatic exchange of

the Pakistani enclaves in the eastern part of India with the Indian

enclaves in eastern Pakistan; (iv) neither India nor Bangladesh had

formally terminated the treaty of

1958 and as such in so far as the

F provJsions

of the said agreement of 1958 concern Berubari union No. 12

and the Cooch Behar enclaves, including Dahagram and Angarpota,

they could not be given a go-by in the manner purported to have been

done,

and a further amendment to the Constitution was necessary; and

(v) the use

of the expression 'residual jurisdiction' in clause 9 of the

agreement

of 1962 indicated that Indian only retained residnal

G sovereignty over the area and the defacto and real sovereignty in the

area had been surrendered to Bangladesh.

The Division

Bench repelled these contentions. The Bench how­

ever was of the view that the agreements of 1974 and 1982 providing for

exchange

of territories would have to be noted in the relevant schedules J-I to the Constitution before any appointed day could be notified in .

U.0.L v. SUKUMAR SENGUPTA 27

respect of the territories to be transferred to Bangladesh. According to

the Division Bench, this was necessary in order to retain Berubari in

India.

Disposing of the appeal, this Court,

HELD: (

1) The Division Bench came to the correct conclusion that

in so far as the eastern border of India was concerned, the Ninth

Constitutional amendment had not become

part of the Constitution as

no appointed day had been notified, and in that view of the matter, the

decision to allow Bangladesh to retain Dahagram and Angarpota under

the 1974 and 1982 agreements did not amount to cession of Indian

territory in favour of Bangladesh. [45A-B

I -

A.K. Roy, etc. v. Union of India & Anr., [1982] 2 S.C.R. 272;

Maganbhai Ishwarbhai Patel v. Union of India & Anr., [1969] 3 S.C.R.

254, referred to.

A

B

c

(2) The Division Bench was pre-eminently right in arriving at the D

conclusion that there was no automatic transfer of Dahagram and

Angarpota to India under the

1958 agreement in the absence of a 110tified appoin .• 'fl day, and consequently both defacto and dejure these en­

claves remained part of East Pakistan and subsequently Bangladesh. I 44G-H]

(3) The Division Bench had held that the agreements of 1974 and E

1982 did not amount to cession of territory or abandonment of

sovereignty.

If that is

the position, no constitutional amendment was

required for the arrangements entered into either by the agreement of

1974

or 1982. The Division Bench was therefore in error in expressing a

contrary view. [44B-C]

(4) In that view of the matter, the agreements of 1974 and 1982

did not require to be suitably notified or included in the official

gazettee. Therefore, there was

no cause to direct the legislature to

amend or pass suitable laws. l52B]

F

State of Himachal Pradesh v.

Urned Ram Sharma, [1986] 2 G

S.C.C. 68; State of Himachal Pradesh v. A parent of a Student of Medi-

cal College, Simla

&

Ors., [1985] 3 S.C.R. 676, referred to.

(5) The expression 'lease iit perpetuity' has to be understood in

the context of and with reference to the objects of the agreement. The

object

of the lease was to allow access to Bangladesh

to Daba~ram and H

28 SUPREME COURT REPORTS [1990l 3 S.C.R.

A Angarpota for the purpose of exercise of her sovereignty over and in the

said areas •. Having examined the rights in the agreements, these do not .,;::

amonnt to lease or surrender of sovereignty as understood in the inter­

nationallaw. [47B-D]

B Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R.

368, referred to.

(6) The Division Bench rightly held that the recital in a deed

conld not operate as an estoppel against the specific terms and condi­

tions thereof. On a construction of the agreements, the Division Bench

came to the correct conclusion that the agreements of

197 4 and 1982

C together in their entirety must be judged. [47F]

(7) An agreement between two countries might be ratified not

only by a

-subsequent formal agreement but by actual implementation or

by conduct, and read properly, the subsequent agreement did ratify the

0

previous agreement. [46G-H]

E

(8) The Division Bench rightly held that under the said

agreements, specific and limi~ed rights were being granted to

Bangladesh. Such rights were not exclusive and the aggregation thereof

would not amount to a lease, as

is commonly understood in favour of

Bangladesh. [49D-E]

(9) Certain restrictions had been imposed

on India over its

abso­

lute sovereignty in the area to serve the purpose in favour of and in the

interest

of Bangladesh. These are, however, self-imposed restrictions. On a proper constrnction of the agreements of 1974 and 1982 and the

individual clauses, it cannot he said that as a result of the said agree-

F

ment, India had surrendered its sovereignty over the said area of Teen

Bigha in favour

of Bangladesh or that Bangladesh has become the

sovereign over the said territory to the exclusion oflndia.

[49G-H]

(JO) Sovereignty is a quality of right. It is a bundle of rights. It

depends on the facts and the circumstances of each case. Apart from

G anything else, the specific clause in the agreement of

1982 that

sovereignty over the area shall continue

to vest in

India stands in the

way

of a contrary construction.

[SOA-B J

Panama Canal's case Hudson Cases & Ors. Materials on interna­

H tional Law, 3rd Edition, 1951 pp 222-3, distingnished.

-r

'

U.0.1. v. SUKUMAR SENGUPTA 29

(11) 'Sovereignty' has been defmed as "the snpreme authority' in

an independent political society. It is essential, indivisible and

illimitable. However, it is now considered and accepted as both

divisible

and !imitable. Sovereignty is limited externally by the

possibility

of a general resistance. Internal soverejgnty is

para­

mount power over all action, and is limited by the nature of the power

itself. [41E-F]

(

12) In the present and modern context sovereignty has and must

have a more restrictive meaning than it had in the earlier centuries

when on the emergence of individual national States, no limits on the

power

of States, were acknowledged. Any

State in the modern times has

to acknowledge and accept customary restraints on its sovereignty

inasmuch as no State can exist independently and without reference to

other States. Under the general international law the concept of inter­

dependence of States bas come to be accepted. Ev.en without the said

agreements

of 1974 and 1982, so long as Dahagram and Angarpota

remain part of Bangladesh, the latter under the general international

law

and customs would have a right to access to the said enclose through

the territory oflndia.

[SOC-E]

( 13) Amicable and peaceable settlement of boundary disputes are

in the interests

of the international community. The older and absolute

ideas

of sovereignty and independence has thus necessarily to be

modified in the dawn of the 21st century. A perpetual right to passage

and other incidental rights given to Bangladesh for the limited purpose

for exercising the sovereignty over her own two enclaves within the

territory of India and /or if imposed restrictions on itself by India does

not tantamount to transfer

of interests in India. [52E-F J

A

B

c

D

E

CIVIL APPELLA1E JURISDICTION: Civil Appeal Nos. 2833-35 F

of 1987.

From the Judgment and

Order dated 19. 9 .1986 of the Calcutta

High Court in A.F.O. No. 102 of 1984 in M.A. Nos. 3036 and 3062 of

1983.

Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional

Solicitor General, Gopal Subramanium, Ms. A. Subhashini an\! P.

Parmeshwaran for the Appellants.

f

S.S. Khanduja, Y.P. Dhingra and. B.K. Satija lfor the

G I

Respondents. H

A

B

c

D

E

F

G

30 SUPREME COURT REPORTS (19901 3 S.C.R.

The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, CJ. This appeal by special leave

arises from the judgment and order of the Division Bench of the High

Court of Calcutta dated

19th September, 1986.

The Indian Independence Act, 1947 (hereinafter referred to as

'the Act') was passed by the British Parliament. This Act came into

force

on and from 15th

Augusl,.1947, which was the appointed day and

under the Act, as from the appointed day, two independent dominions

were to be set up in place of the existing India known, respectively

as

'India' and 'Pakistan'. Two independent dominions were set up in

place of the existing Indian Union.

Section 3(1) of the Act provided,

inter alia, that as from the appointed day the Province of Bengal as

constituted under the Government of India Act, 1935 shall cease to

exist and in lieu thereof two new provinces known respectively

as 'East

Bengal' and 'West Bengal'

shall be constituted under section 3(3) of

the Act. Under section 3(3)' of the Act, it was provided that the

boundaries

of the new provinces as aforesaid shall be such as may be

determined whether before or after the appointed day

by the award of

a Boundary Commission appointed or to be appointed

by the Gover­

nor General in that behalf.

On 30th June, 1947, the Governor General

made an announcement that it had been decided that the Province of

Bengal and Punjab shall be partitioned. Accordingly, a Boundary

Commission was appointed, inter alia, for Bengal consisting of Sir

Cyril Radcliffe as the Chairman. So far as Bengal was concerned, the

material terms of reference provided that the Boundary Commission

should demarcate the boundaries of the two parts of Bengal on the

basis of,

inter alia, the contiguous areas of Muslims and non-Muslims.

The Commission held its enquiry and made an award on August 12,

1947, i.e., three days before the appointed day. The Chairman gave his

decision regarding the demarcation of boundary line in respect of Dis­

trict

of Darjeeling and Jalpaiguri i.n para 1 ofAnnexure 'A' which

provided that a line

was to be drawn in a particular manner. The

Award directed that the District of Darjeeling and

so much of the

District of Jalpaiguri

as lies north of the said line shall belong to West

Bengal but the Thana of Phatgram and

any other portion of Jalpaiguri

. District, which lies to the East or South, shall belong to East Bengal.

Problem arose subsequently regarding the Berubari Union No.

12

Which was situated in the

Police Station Jalpaiguri in the District of

J alpaiguri, which was at the relevant time a part of Raisahi Division of

Bengal. After the partition, Berubari Union formed part of the State

of West Bengal and had been governed as such. The Constitution of

·-

/

U.0.L v. SUKUMAR SENGUPTA [MUKHARJI, J.[ 31

lndia was declared to be passed on 26th November, 1949. As provided

by Article

394 of the Constitution, only certain Articles came into

force

as from that date and the remaining provisions came to be in

force from January 26,

1950. Article 1 of the Constitution provided

that India, that is, Bharat shall

be a Union of

States and that the States

and the territories thereof shall be the States and their territories

specified

in Parts A, B and C of the First Schedule. West Bengal was

shown as one of the

States in Part A. It was further provided that the

territories of the State of West Bengal shall comprise the territory

which immediately before the commencement of the Constitution was

comprised in the Province of West Bengal. As already pointed out in

view of the said award, Berubari Union No. 12 was treated as part of

the Province of West Bengal and

as such has been treated and gover­

ned on that basis. Subsequently, certain boundary disputes arose

between India and Pakistan and a Tribunal

was set up for the adjudica­

tion and final decision of the said disputes. However, the same had

nothing to do with the present case and the question of Berubari

Union

or the Cooch Behar enclaves or Pakistani enclaves in the east

was not the subject-matter of the same. But the said question

was

raised by the Government of Pakistan in the year 1952. Admitted

position

is that during the whole of this period, the Berubari Union

continued to be

in the possession of the Indian Union and was gover­

ned as part of West Bengal. Near about

1952, Pakistan alleged that

under the Award, the Berubari Union should really have formed part

of East Bengal. In September, 1949, Cooch Behar had become part of

the territory of India and was accordingly included

in the list of Part C

States at Serial No. 4 in the First Schedule to the Constitution. On the

31st December,

1949, the

States Merger (West Bengal) Order, 1949,

was passed. It was provided in the ~aid order, inter alia, that Indian

state of Cooch Behar would be administered

in all respects as if it was a

part of the Province of West Bengal, on and from the 1st January, 1950, thereby the erstwhile State of Cooch Behar was merged with

West Bengal and began to be governed

as if it was a part of West

Bengal. The

State of Cooch Behar was thereafter taken out of the list

of Part C States, in the First Schedule to the Constitution and added to

West Bengal in the same Schedule. Certain areas which formed part of

the territories of the former Indian State of Cooch Behar and which

had subsequently become part of the territories of India and then of

West Bengal became after the partition enclaves

in Pakistan.

Simi­

larly, certain Pakistan enclaves were found in India. Dahagram and

Angarpota (now Bangladesh), were the Pakistani enclaves in India.

The Prime Ministers of two countries entered into an agreement settl­

ing certain disputes including the Berubari Union and the enclaves iI).

A

B

c

D

E

F

G

H

A

B

c

D

32 SUPREME COURT REPORTS [1990] 3 S.C.R.

the East Pakistan in 1958. Two items in Para 2 of the said Agreement

were items 3 and 10. These were as follows:

"Item No. 3:-Berubari Union No. 12

'This will be so divided as to give half the area to Pakistan,

the other half adjacent to India being retained by India.

The Division of Berubari Union No.

12 will be horizontal,

starting from the north-east comer of Debiganj Thana. The

division should be made

in such a manner that the Cooch­

Behar enclaves between

Pachagar Thana of West Bengal

will remain connected as at present with Indian territory

and

will remain with India. The Cooch-Behar Enclaves

lying between Boda Thana of East

Pakistan and Bernbari

Union No. 12 will be exchanged along with the general

exchange of enclaves and

will go to

Pakistan."

Item No. JO:-"Exchange of old Cooch-Behar Enclaves in

Pakistan and Pakistan Enclaves in India without claim to

compensation for extra area going to Pakistan, is agreed

to."

Subsequently, there was doubt as to whether the implementation

of the 1958 Agreement relating to Bernbari Union and the exchange of

E Enclaves requires any legislative action either

by way of a suitable law

of the Parliament relatable to Article 3 of the Constitution or in

accordance with the

provisions of Article 368 of the Constitution or

both. Accordingly,

in exercise of the

powers conferred upon him by

clause (1) of Article 143 of the Constitution, the President of India

referred the following three questions, to this Court for consideration:

F

G

(1) Is any legislative action necessary for the implementa­

tion of the agreement relating to Berubari

Union?

(2) If so, is a law of Parliament relatable to Article 3 of the

Constitution sufficient for the purpose or

is an amendment of the

Constitution in accordance with Article

368 of the Constitution

necessary

in addition or in the alternative?

(3) Is a law of

Parliament relatable to Article 3 of the

Constitution sufficient for implementation of the agreement

relating to the exchange of Enclaves or

is an amendment of the

H Constitution in accordance with Art.

368 of the Constitution

/

U.0.1. v. SUKUMAR SENGUPTA IMUKHARJI, J.J 33

necessary for the purpose in addition or in the alternative?

This Court answered the questions

as follows.

So far as question

no. 1 was concerned, it was answered in affirmative. So far as second

question

was concerned, this Court answered it by saying that a law of

Parliament relatable to Art. 3 of the Constitution would be incompe­

tent and a law of Parliament relatabie to Art. 368 of

the Constitution is

competent and necessary and also by saying that a law of Parliament

relatable to both Article

368 and Art. 3 would be necessary only if

Parliament chooses first to pass a law amending Art. 3 as indicated

above;

in that case Parliament may have to pass a law on those lines

under

Art 368 and then follow it up with a law relatable to the

amended Art. 3 to implement the agreement. Question No. 3

was also

answered as aforesaid. The said decision

is reported in Re. The

Berubari

Union and Exchange of Enclaves [1960) SCR 3 250. Ninth

Amendment to the Constitution

was made thereafter. The

Objects

and Reasons of the Constitution (Ninth Amendment) Act, 1960 stated

that th~ Inda-Pakistan agreements dated September 10, 1958, October

23, 1959, and January 11, 1960, which settled certain boundary dis­

putes relating to the borders of the State of Assam, Punjab and West

Bengal, and the Union Territory of Tripura involved transfer of cer­

tain territories to Pakistan after demarcation. The Act amended the

Constitution to give effect to the transfer of those territories. After

setting out the title of the Act, which

was called the Constitution

(Ninth Amendment) Act,

1960, it provided the definitions and amend­

ments to the First Schedule to the Constitution.

In 1966, writ petitions

were filed challenging the validity of the proposed demarcation

as also

raised the question

as to whether the proposed transfer of Berubari

Union would result in deprivation of citizenship and property without

compensation. The writ petitions were dismissed eventually

by this

Court. The said decision

is reported in Ram Kishore

Sen & Ors. v.

Union of India & Ors., [1966) 1SCR430.

In 1971, a sovereign independent State known as 'Bangladesh'

came into existence which comprised of the territory previously known

A

B

c

D

E

F

as

East Pakistan or East Bengal.

On or about the 16th May, 1974, an

agreement was entered into by and between the Prime Ministers of G

India and Bangladesh regarding the land boundary and related matters

including transfer of enclave's. Article 1 para

12 of the said Agreement

provided that Indian enclaves in Bangladesh and Bangladesh enclaves

in

India should be exchanged expeditiously excepting the enclaves

mentioned in para

14 without claim to compensation for the additional

area, going to Bangladesh. Thereafter, an understanding

was reached H

A

B

c

34 SUPREME COURT REPORTS I 1990] 3 S.C.R.

in October, 1982, between the two Governments m connection with

the "lease in perpetuity" in terms of item 14 of Article 1 of the 1974

Agreement. In 1983, writ petitions were filed in the Calcutta High

Court. In September, 1983, the learned Single Judge of the Calcutta

High Court dismissed the writ petitions holding, inter alia, that

the implementation of the 1974 .and 1982 agreements did not involve

cession

of Indian territory to Bangladesh. The said judgment in

Sugandha Roy v.

Union of India & Ors., is reported in AIR 1983 Cal.

at p. 483. It was held therein that there being no Gazette Notification

fixing any "appointed day" within the meaning of Ninth Constitution

Amendment in respect of the Eastern India, particularly the Berubari

Union and the Pakistani enclaves, and no Gazette Notification having

yet been issued, it was clear that 9th amendment so far as it related to

exchange

of the enclaves in Eastern India has not come into effect by

virtue

of the said Ninth Amendment in view of the fact that it was

expressly provided in the said 9th Amendment that only from the

"appointed day" the Schedule to the Constitution shall be amended

and there being no "appointed day" in respect of the territories in th~

D Eastern India, the First Schedule to the Constitution remained un­

amended in so far as eastern India is concenred particularly the

Berubari Union and the enclaves of the Dahagram and Angarpota

and, as such, neither in fact nor in law there was any accession to India

in respect

of the two enclaves and they remained part of

Pakistan (now

E

F

G

H

Bangladesh) as they were before in spite of 1958 Nehru-Noon Agree­

ment and Ninth Amendment. Therefore, the implementation of the

1974

and 1982 Agreements which provided, inter alia, that the two

enclaves would not be exchanged would not amount to cession of any

Indian territory which would require any

Constitutional amendment.

Even if one proceeded on the basis of the 1958 agreement entered into

by India

and

Pakistan so far as it related to the territories of eastern

India remained effective and valid after the emergence of Bangladesh.

It was open to India and Bangladesh to enter into a fresh treaty

modifying the

1958 agreement and that was actually what had

happened in the present case. India and Bangladesh had, by the said

1974

and 1982 agreements and to the extent indicated therein tenni-

nated and/or modified the earlier Treaty of 1958 in respect of inter

alia,

southern portion ofBerubari

Union and the two enclaves in ques­

tion.

In such a case, even if it could be

said that it was the obligation

of the Government of India to make endeavour to foster respect for

the 1958 treaty as contemplated by Article 51(c) that did not prevent

the Government of India from entering into the 1974 and 1982 agree-

ments and modifying the earlier treaty particularly having regard to

the fact that the 1958 agreement so far as it related to transfer of

U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 35

southern portion of Berubari Union and the exchange of enclaves in

A

question was not given effect to any time and the Ninth Amendment to

that effect was never brought into force. The Court, further, held

that when by 1974 agreement read with 1982 agreement Bangladesh

Government had been given the facility of using the Indian area

known as "Teen Bigha" in the manner contemplated by those agree-

ments to

be discussed in detail later, the implementation of those two B

agreements would not involve cession of any territory to Bangladesh in

.,

respect of Teen Bigha. Not merely that no exclusive possession of that

'---( area was sought to be transferred to Bangladesh and no legal posses-

sion at all was being transferred. There

was no question of transfer of

sovereignty, wholly

or partially, in respect of the said area. What had

merely been done

was to enable the Government of Bangladesh and

c

its nationals to exercise certain rights in respect of the said area,

i.e., Teen Bigha, which otherwise they would not

havP. been entitled to

do.

That was being so allowed because instead of exchange of these

enclaves along with others

as contemplated by 1958 Agreement, it was

a~reed that these two enclaves would remain as part of Bangladesh.

The Court, further, held that it was clear that the reason was that in D

spite of the 1958 agreement and in spite of the Ninth Amendment,

which had not been given effect to, the southern portion of Berubari

Union had to be retained by India. As these two enclaves were to

remain as part of Bangladesh territory, these two agreements had

/

made some provisions to enable Bangladesh to exercise its sovereignty

in full over these two enclaves. This

is also clear by 1982 agreement, E

the Court held. Thus, the imolementation of these two agreements, so

far as Teen Bigha was concerned,. did not amount to cession of the

said

---

territory or transfer of sovereignty in respect of the same and did not ---.,

require any constitutional amendment.

There was an appeal before the Division Bench of the High

F

f

Court. The Division Bench referred to the relevant authorities and the ..

J- i

interpretation of 1974 and 1982 agreements made by the learned Single

Judge which were not .disputed before the Division Bench. The Divi-

sion Bench in judgment under appeal affirmed the decision 0f the

learned Single Judge. The findings and interpretation of the agree-

ments

of 1974 and 1982 were also not disputed before us. We are also G

of the opinion that that is the correct position in law and on facts.

---'·

As mentioned hereinbefore, on or about 16th May, 1974, an

agreement was entered into by and between Government of India and

the Government of the People's Republic of Bangladesh. The said

agreement was signed by late Smt. Indira Gandhi, as the then Prime H

A

B

c

D

E

F

36 SUPREME COURT REPORTS [1990] 3 S.C.R.

Minister of India for and on behalf of the Government of India and

Sheikh Mujibar Rehaman, the then Prime Minister ofBangladesh,

signed the said agreement for and on behalf of the Government of

People's Republic of Bangladesh.

It was recorded in the preamble of

the agreement that the same concerned the demarcation of the land

boundary between India and Pakistan and related matters, and that

the two Governments were aware that friendly relations were existing

between the two countries and that it

was desired to

dMine the

boundary more accurately at certain points and to complete the

demarcation thereof. Items

12 and 14 of Article 1 of the Agreement

relevant to the proceedings before us,

as mentioned before, were as

follows:

"Item No. 12:-

The Indian enclaves in Bangladesh and the Bangladesh en­

claves in India should be exchanged expeditiously, except­

ing the enclaves mentioned in paragraph

14 without claim

to compensation for the additional, area going to

Bangladesh."

Item No. 14:-

"lndia will retain the southern half of south Berubari Union

No. 12 and the adjacent enclaves, measuring an area 2.64

square miles approximately, and

in exchange Bangladesh

will retain the Dahagram and Angarpota

·enclave. India

will lease in perpetuity to Bangladesh and area of approxi­

mately

178 metres x 65 metres near 'Tin Bigha' to connect

Dhagram with Panbari Mouza

(S. Patram) of

Bangladesh."

Article 5 provided that the agreement shall be subject to notifica--'..

tion by the Government of India and Bangladesh and Instruments of

rectification shall be exchanged

as early as possible. It may,

however, be stated

as was noted by the Division Bench of the Calcutta

High Court that the agreement dated

11th May, 1974 was also not

G implemented. Subsequently, letters passed between the Ministry of

Foreign Affairs, Government of Bangladesh and the Ministry of

Ex­

ternal Affairs, Government of India, both dated the 7th October, 1982

in which it was recorded that with reference to the earlier agreement

?---

between Government of Bangladesh and the Government of India

concerning the demarcation of land boundary between the

two

H countries, signed on the 16th May, 1974, the following understanding

/

'

U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 37

had been reached between the two Governments in respect of lease in

perpetuity by India of the said area of 178 metres x 85 metres near

'Teen Bigha' to connect Dahagram with Mouza Panbari

in Bangladesh.

The understanding recorded was

as follows: "Clause 1:-

"The lease in perpetuity of the aforementioned area shall

be for the purpose of oonnecting Dahagram and Angarpota

with Panbari Mouza (P.S. Patgram) of Bangladesh to

enable the Bangladesh Government to exercise her sover­

eignty over Dahagram and Angarpota."

Clause2:-

"Sovereignty over the leased area shall continue to vest in

India. The rent for the lease area shall be Bangladesh Re.1

(Bangladesh Taka one) only per annum. Bangladesh shall

not however

be required to pay the said rent and Govern­

ment

of India hereby waives its right to charge such rent in

respect of the leased

area."

Clause3:-

A

B

c

D

"For the purposes stated in para 1, Bangladesh shall have E

undisturbed possession and use of the area leased to her

in perpetuity."

Clause4:-

"Bangladesh Citizens including Police, Para Military and. p

Military personnel along with their arms, ammunition

equipment and supplies shall have the right of free and

unfetttered movement

in the leased area and shall not be

required to carry passports or travel documents of

any

kind. Movement of Bangladesh goods through the leased

area shall also be free. There shall be no requirement of G

payment of customs duty tax or

levy of any kind what­

soever or any transit charges.

Clause5:-

"Indian citizens including police, par Military and H

38

A

B

c

D

E

F

G

H

SUPREME COURT REPORTS [1990] 3 S.C.R.

Military personnel along with arms ammunition equipment

and supplies shall continue to have right of free and un­

fettered movement

in the leased area in either direction.

Movement

of Indian goods across the leased area shall also

be free. For purpose of such passage the existing road run­

ning across it shall continue to be used. India may

al;;D

build a road above and or below the surface of the leased

area in an elevated or subway form for her exclusive

use in

a manner which

will not pre ju dice free and unfettered

r

movement of Bangladesh citizens and goods as defined in Y

para 1and4 above.

Clause 6:-"The two Governments shall co-operate in

placing permanent market along the parameters of the

leased area and put

up fences where

necessary."

Clause7:-

"Both India and Bangladesh shall have the right to lay

cables, electric lines, water and sewerage pipes etc. over or

under the leased area without obstructing free movement

of citizens or goods of either country as defined in parts 4

and5 above.

Clause8:-

"The Modalities for implementing the terms of the lease

will be entrusted to .the respective Deputy Commissioners

of Rangpur (Bangladesh) and Cooch Behar (India). In case

of Differences, they refer the matter to their respective

Governments for resolution.

Clause 9:-

"In the event of any Bangladesh/Indian national

being involved

in an incident in the leased area, constitut­

ing an offence in law, he shall be dealt with

by the respec­

tive law enforcing agency of his

own country, in accordance

with its national laws.

Ia the event of an incident in the

leased area involving nationals of both countries the

law

enforcing agency on the scene of the incident will take

necessary steps to restore law and order.

At the same time

immediate steps will be taken to get in track with the

law

enforcing agency of the other country. In such cases, any

Indian national apprehended by a Bangladesh law enforc-

J.

U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 39

ing agency shall be handed over forthwith to the Indian

side and Bangladesh national apprehended by an Indian

law enforcing agency shall be handed over forthwith to the

Bangladesh side. India will retain residual jurisdiction in

the leased area."

It was further confirmed by the letters that the same would con­

tinue as an agreement between the two Govermnents and would be an

integral

part of the earlier agreement of 1974 concerning the demarca­

tion

of land boundary between India and Bangladesh and other related

matters.

Construing clauses 2 and 3

of the agreement of 1982, the learned

Single Judge in the Calcutta High Court in the judgment under appeal

had held that there was no question of lease or exclusive possession of

Bangladesh

of the said area. The undisturbed possession and use of the

said area granted

to Bangladesh under the said agreement of 1982 had

to be read in the background of the purpose of the agreement, namely,

connecting Dahagram and Angarpota with

Panbari Mouza of Bangla­

desh to enable the Bangladesh Government to exercise sovereignty

over Dahagram and Angarpota. The learned Single Judge had further

held

that such undisturbed possession and use did not mean exclusive

possession but merely meant that there would be no interference with

the exercise of rights conferred by the agreement on Bangladesh

Government and its nationals. The learned

Single Judge had held that

no transfer of possession of the area was contemplated under the

agreement.

Construing clause 9

of the agreement, the learned

Single Judge

had held that under the said clause where persons were involved in any

criminal offence in the said area, if they were all Indian nationals, the

matter would be taken up by the Indian law enforcing agency. If the

same involved only Bangladesh nationals the same would be dealt with

by the

Bangladesh law enforcing agency only. But where both Bangla­

desh and Indian nationals were involved in any incident, the

law en­

forcing agency

of each

State would take up the matter to the exclusion

of the other. The learned Single Judge had held that the said clause

conferred certain important rights to B'angladesh and took away some

important rights

of the Government of

India, its law enforcing

agencies, the courts in India and Indian citizens.

At present, the law

enforcing agencies of India and the Indian Courts alone had exclusive

jurisdiction in respect

of such matters. The learned

Single Judge had

held

that if the agreement was implemented the existing Indian law

A

B

c

D

E

F

G

H

B

c

40 SUPREME COURT REPORTS l 1990] 3 S.C.R.

and the machinery for enforcing such law would not be available in the

area so far as B_angladesh nationals were concerned. India would have

no jurisdiction over Bangladesh nationals in respect of any offence

committed in the area. The learned Single Judge, however, held that

conferment of this power under the agreement to Bangladesh and

abdication

of any such power by India, by itself did not amount to

transfer

of sovereignty in respect of the area. But the learned Judge

noted that merely by virtue of the agreement and without any amend­

ment of existing Indian law it might not be legally possible to take

away existing jurisdiction of the law enforcing agencies of India

or the

Indian courts.

The Division Bench of Calcutta High Court correctly noted that

the learned Single Judge came to the following conclusions:

(a) Implementation of the agreements of

1974 and 1982 did not

involve cession of any Indian territory to Bangladesh.

D (b) No exclusive

or legal possession of Tin Bigha was being

transferred to Bangladesh.

(c) There was no question of transfer of sovereignty of India

wholly

or partially in respect of the said area.

E ( d) Certain privileges only had been conferred on Bangladesh

and its nationals

under the said agreements which otherwise they

would not have.

(

e) As Dahagram and Angarpota would remain as parts of

Bangladesh territory, the agreements were

neces~ary to enable

F Bangladesh to exercise its sovereignty

in full over the said enclaves.

(f)

In spite of the said agreements India would retain its

sovereignty, ownership and control over Tin Bigha.

It was contended before the Division Bench that the agreement

G between India and Bangladesh of

197 4 provided specifically that the

same would be suitably ratified. But it had not been ratified.

It was

urged that in the absence of any ratification of the agreement of 1974,

·-

'

India and Bangladesh could not enter into the said subsequent agree->­

men! in 1982 on the basis of the agreement of 1974. It was submitted

that the said agreement of 1982 could not stand by itself. Learned

H Advocate had submitted before the Division Bench that under clause

).

U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 41

14 of the agreement of 1974, it was clearly recorded that India would

lease in perpetuity to Bangladesh the said area of Teen Bigha to con­

nect Dahagram with the Panbari mouza in the main land of Bangla­

desh. The subsequent agreement of

1982 was entered into between

the two countries for implementing the earlier agreement of 1974 and

had to be construed in the background of the latter. Several other

contentions were urged

on behalf of the

Union of India and the appel­

lants before the Division Bench. All the contentions were noted by Mr.

Justice D .K. Sen, as the learned Chief Justice then was, who delivered

the main judgment of the Division Bench in the judgment under

appeal.

He also noted the decision of this Court in Associated Hotels of

India Ltd. v. R.N. Kapoor,

[1960] 1 SCR 368 on the question of lease

and licence-and also the decision of this Court ·in the Presidential

Reference noted above. The decision of this Court

in Maganbhai

Ishwarbhai Patel

v.

Union of India & Anr., [1969] 3 SCR 254, which

dealt with the cession of Rann of Kutch to Pakistan, was also noted.

This Court had reiterated there that a treaty really concerned the

political rather than the judicial wing of the State. When a treaty or an

award after arbitration comes into existence, it had to be implemented

and this can only be if

all the three branches of Government to wit the

Legislature, the Executive and the Judiciary, or any of them, possess

the power to implement it. On the question of 'sovereignty', reliance was placed before us

on 'A Concise Law Dictionary' by P.G. Osborn, 5th Edition, p. 297,

· where 'sovereignty' has been defined as "the supreme authority" in an

independent political society. It is, essential, indivisible and illimit­

able. However, it

is now considered and accepted as both divisible and

!imitable, and

we must recognise that it should be so. Sovereignty is

limited externally by the possibility of a general resistance. Internal

sovereignty

is paramount power over all action within, and is limited

by the nature of the power itself.

At p. 94, J.G.

Starke in 'Introduction to International Law', 9th

Edition, explains the position as under:

A

B

c

D

E

F

"Normally a State is deemed to possess independence and G

'sovereignty' over its subjects and its affairs, and within its

territorial limits 'Sovereignty' has a much more restricted

meaning today than

in the eighteenth and nineteenth

centuries when, with the emergence of powerful highly

nationalised States,

few limits on

State autonomy were ack-

nowledged. At the present time there is hardly a State H

A

B

c

D

E

F

G

H

42

SUPREME COURT REPORTS [1990] 3 S.C.R.

which, in the interests of the international community, has

not accepted restrictions

on its liberty of action. Thus most States are members of the United Nations and the Interna­

tional Labour Organisation 'ILO', in relation to which they

have undertaken obligations limiting their unfettered dis­

cretion in matters of international policy. Therefore, it is

probably more accurate today to say that the sovereignty of

a State means the residuum of power which it possesses

within the confines laid down by international law."

In a practical sense, it has been noted, sovereignty would be

largely a

matter of degree. Reference, in this connection, has been

made to the following authorities on the following aspects of

inter­

national law:-

International Law, D.P.O. 'Connell, 2nd Edn. Vol. I page 552.

Customar)I Restraints on Sovereignty:

"A survey of actual servitudes is instructive when

approaching the more general question

or customary

restraints

on sovereignty in the interests of neighbourly

relations, because they disclose the categories

of situations

susceptible

of customary law treatment. With the exception

of fisheries, those treaties instanced as servitudes all give

effect to the notion of freedom

of access or of transit. The

subject-matter may be broken down into a consideration

of

the general principles of access and transit, and then

7

specific investigations of rivers and canals as media of - .

transit."

Freedom of access and transit:

"The classical writers from Vittoria on were unanimous in

their view that a State must permit others to trade with it,

and hence must grant them access and right of transit, and

the opinion was maintained in spite of a mercantilis theory

of

trade."

Access to enclaves:

"There is cogency in the argument that a State has a right

of access across alien territory to its enclaves area and in

U.0.1. v. SUKUMAR SENGUPTA {MUKHARJI, J.] 43

fact enclaves have only survived because of the graot of

necessary facilities, so that all enclaves are servitudes.

Whether,

in the absence of actual agreement there is a

right

of access

was undecided by the International Court of

Justice in the rights of passage case because it found that

existing practice

in the instant situation was the appropriate

guide

and it was unnecessary to resort to general interna­

tional Jaw,

The lesson on the face is that free access means

in fact limited access, but the fact remains that even though

the territorial State has a discretion

to regulate and

authorise

the exercise of rights these none the less remain

rights."

In the actual case the Court allowed a latitude of discretion

to India which narrowed down, in some respects almost to

vanishing point, the admitted right

of access. In particular

there was a dissent on the question whether armed forces

were entitled to access.

"The Development of International law, by International Court­

Sir Herson Lauterpacht, 1958".

"A number of cases decided by the Court are instructive

A

B

c

D

not so much as pointing to a restrictive interpretation of

rights ?f sovereignty as, in affirming its' divisibility and E

capacity for modification, in denying to it and rigid quality

of absoluteness.

The result in accordance with what is the essence of the

system

of mandates and trusteeship is to stress the func­

tional divisibility

of sovereignty and, then, the absence F

from it, notwithstanding doctrinal logic, of any rigid

el!!ment of absoluteness.

However, it

is believed that the recognition by the Court of

such situations, involving as they do the separation of some

functions and attributes

of sovereignty from others, is G

bound, apart from affirming the relative nature of sover­

eignty; to be beneficial for the development of inter­

national law and the peaceful adjustment

of territorial and

political problems. Unless autonomy and delegated exer-

cise

of sovereignty are made distinguishable both in fact

and in law from outright cession

of territory, it may be H

A

B

c

D

44 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

difficult to secure for them the place to which they are

entitled as an international institution rendering possible

territorial arrangements and adjustments short of cession.

The convenience of a rigid dichotomy of

full sovereignty

and the entire absence thereof

is probably

deceptive."

In the light of authorities on International Law as noted above,

and the factual findings noted above,

we are of the opinion that the

Division Bench came to the correct conclusion that the decision to

allow Bangladesh to retain Dahagram and Angarpota under the agree­

ments of

1974 and 1982 would not amount to cession of any part of the

territory

of India in favour of a foreign State. The Division Berlch after

examining the record came to the conclusion that both defacto and

dejure Dahagram and Angarpota remained part of the East Pakistan

and subsequently Bangladesh. If that is the position, then undiputedly

there was no question of cession of any part or any territory by the

agreements of

1974 and 1982. This is a finding which is factually con­

cluded. We are of the opinion. that it

is factually correct, and not

disputed before us

by the respondents.

The Division Bench next considered whether

by reason of the

agreement of

1958 between India and Pakistan, which was sanctioned

by the Ninth amendment to the Constitution, there

was automatic

exchange of the Pakistan enclaves in the eastern part of India with

E

the Indian enclaves in eastern Pakistan. The Division Bench did not

,

accept this position. The Division Bench noted that so far as the

western border of India and Pakistan

is concerned, the agreement of

1958 between India and Pakistan has been given effect to. By an

official notification,

17th January, 1961 was appointed as the day for

r

the transfer of the territories of India by way of exchange with the

F territories of Pakistan in the western region. No further appointed day

was notified so far as the eastern border of India

was concerned and

the provisions of the 1;58 agreement so far as the eastern region of

'

India was concerned remained unimplemented. The Division Bench

held that there was no automatic transfer of Dahagram and Angarpota

to India under the 1958 agreement between India and

Pakistan in the

G absence

of a notified appointed day. We are of the opinion that the

Division Bench was pre-eminently right

in the conclusion it arrived. It

is not also disputed before us that legally that was the position. Ninth

amendment had not become part of the Constitution

as no appointed

,...._

date was notified. In this connection, reliance may be placed on the

decision

of this Court in A.K. Roy, etc. v.

Union of India & Anr.,

H [ 1982] 2 SCR 272. Consequently, Dahagram and Angarpota remained

U.O.I. v. SUKUMAR SENGUPTA IMUKHARJI, J.] 45

&no still remain part of the territory of East Pakistan and subsequently

Bangladesh. This position has been recognised

by both the Govern­

ments

of India and Bangladesh in the two subsequent agreements of

1974 and

1982. In the aforesaid view of the matter, the decision to

allow Bangladesh to retain Dahagram and Angarpota does not

amount

to cession of Indian territory in favour of Bangladesh. This is well

settled. The Division Bench has so held in the judgment under appeal.

. No argument was advanced before us challenging the aforesaid

finding. Having regard to the facts found and the position of law,

we

are of the opinion that the Higb Court was rigbt in this aspect of the

conclusion.

The next question that falls for consideration

is whether the

agreement of

1958 between India and Pakistan which was sanctioned

by the Ninth Amendment to the Constitution

in

1960 became a final

treaty binding on India and Bangladesh.

It was also accepted that

neither India nor Bangladesh has formally terminated the said treaty

of 1958 and as such it was contended before the Division Bench that in

so far as the provisions of the said agreement of 1958 concern Berubari

Union No. 12 and the Cooch Behar enclaves including Dahagram and

Angarpota were concerned, they could not be given a

go-by in the

manner purported to have been done.

It appears, as the Division

Bench found, that the said agreement between India and Pakistan in

1958 was never implemented so far as the border between West Bengal

and

East Bengal was concerned. The Division Bench held that it was

always open to

States to enter into new treaties or to vary or modify

l!Xisting treaties by fresh agreements. To the extent the 1958 agree-

ment between India and Pakistan remained unimplemented, the Divi­

sion Bench held that it

was open to India and Bangladesh to enter

into 'a new treaty and to modify such unimplemented provisions of the

earlier treaty and this had been done

by the subsequent agreements

entered into between India and Bangladesh in

1974 and 1982.

Under

,

'-·

the said two later agreements, the provision of the earlier agreement

of 1958 stood partially modified and superseded. This view was

supported by the statement of law by D.P.O'Connell in 'International

Law', 2nd Edition, Vol. I, pages 272,

278 and 279. The Division Bench

has so held. We are

in agreement with this view. No contrary view was

canvassed before us.

--'·

As mentioned hereinbefore, it is clear from the said agreements

of 1974 and 1982 that the transfer of territories which were sanctioned

under the Ninth Amendment of the Constitution will not be given

effect to. Berubari No.

12 which was intended to be given to East

A

B

c

D

E

F

G

H

A

B

c

46 SUPREME COURT REPORTS [1990] 3 S.C.R.

Pakistan would not be given to Bangladesh and Dahagram and

Angarpota which were intended to be transferred to India would be

retained by Bangladesh. The question, is, whether to the extent as

aforesaid, a further amendment to the Constitution was necessary.

The Division Bench was of the view that the subsequent agreements of

1974 and

1982 providing for exchange of territories would have to be

noted in the relevant Schedules to the Constitution before any

appointed day could be notified in respect of the territories tc be

transferred

to Bangladesh. This was necessary in order to retain

Berubari in India, according to the Division Bench.

Learned Attorney General has contended before us that this was

not necessary and it was not conceded before the Division Bench that

such amendment

of the Constitution was called for. We are of the

opinion

that learned Attorney General is right in his submission. After

having perused the entire judgment it appears to

us that what the

learned Attorney General had conceded before the Division Bench

·

was that if the agreements of 1974 and 1982 amounted to cession of

D territory

that would have required constitutional sanction or amend­

ment. In view

of the position in International law for the reasons

mentioned hereinbefore, the Divi.sion Bench has held that there was

no cession of territory. If that is the position and we are of the opinion

that it is so, and further in view of the fact that no appointed day was

notified and the Ninth Amendment to the Constitution has remained a

E

dead letter and had not become effective, no constitutional amend­

ment was required for the arrangements entered into either by the

agreements

of 1974 and 1982. The Division Bench, in our opinion, was

in

error in expressing a contrary view.

F

G

A question had been raised before the Division Bench that as the

agreement betwen India and Bangladesh of

1974 specifically and

categorically required ratification, whether India and Bangladesh

could have entered into the subsequent agreement

of 1982 recording

-'

their understanding on the earlier agreements regarding Teen Bigha.

This point, according to the Division Bench was of little substance.

The later agreement of 1982 between India and Bangladesh by itself

includes therein certain clarifications. The agreement between two

countries might be ratified not only

by a subsequent formal agreement

but by actual implementation or by conduct and read properly, in our

opinion, these two subsequent agreements did ratify the previous

agreement. The submission that the agreement between india and

Bangladesh

of 1974 was a personal treaty between late

Smt. Indira

H Gandhi and Late Sheikh Mujiber Rahaman and by reason of their

·-

--

U.O.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.) 47

deaths, the said treaty came to an end, was of no substance was

rejected by the Division Bench and was not pressed before us. The

agreement

of 1974 was a treaty between two sovereign countries, India

and Bangladesh and

r~al treaty as understood in International law.

The expression 'lease

in perpetuity' used in the two agreements

of 1974 and 1982 occurringin the recital is binding on the parties to the

said document.

Odgers Construction of Deeds and Statutes had been

cited as an authority

in support of this contention. But.it has to be

--f" borne in mind that the expression 'lease in perpetuity' has to be under­

stood in the context of and with reference to the objects of the agree­

ments concerned. The meaning attributed to the expression 'lease

in

perpetuity' in private law can not be properly imported for the purpose

of construing a document recording an agreement between two

sovereign

States acting as high contracting parties, where neither of

them

is bound by the private law of the other. For the same reason, it ~/is not necessary to decide whether the said agreements of 1974 and

1982 amounted to or resulted in the grant of a licence by India in

favour of Bangladesh under Indian law or within the meaning of the

Indian Easement Act. This question has to

be examined on the terms

and conditions recorded

in the said agreements and in the context of

International Law to determine what rights are being conferred on the

respective

States thereunder. In that view of the matter, the nomencla­

ture used and the expressions recorded would not

by themselves be of _/ much significance. This view is supported by the observations of Ian

Brownlie in 'Principles of Public International Law', 2nd Edition.

__.,,- The use of the expression 'lease in perpetuity' in the recital of the

· ""-I -agreement of 1982 and whether such recital operates as an estoppel

against the parties

is not of particular significance. In any event, the

Division Bench held that the recital

in a deed could not operate as an

)_ estoppel against the specific terms and conditions thereof. On a con-

. · ·· struction of the agreement, the Division Bench came to the conclusion

that the agreements of 1974 and 1982 together in their entirety keeping

in view the background must be judged.

An important and significant

fact in the background of which the said agreements had been entered

into between India and Bangladesh

was

that the two areas Dahagram

and Angarpota, now intended to be retained by Bangladesh, were

enclaves wholly encircled and enclosed by the territories of India.

If ___.-'. Bangladesh had to reiain and exercise its sovereignty over these areas,

her access to the said areas was imperative and necessary. It is with

that object, namely, to allow access to Bangladesh to Dahagram and

Angarpota for the purpose of exercise of her sovereignty over and

in

A

B

c

D

E

F

G

H

A

B

c

48 SUPREME COURT REPORTS [1990) 3 S.C.R.

the said areas, the said agreements had been entered into. It must be

understood in that light and appreciated

in the background of desire to

maintain friendly and neighbourly relationships between

two

sovereign

States. In the agreement of 1974, it was only recorded that

India would lease in perpetuity to Bangladesh the said area at Teen

Bigha to connect Dahagram and Panbari Mouza of Bangladesh. Terms

and conditions

of the intended lease were not set out in the agreement

of 1974. In the subsequent agreement of 1982, it was clarified by the

two Governments

as to what would be the said 'lease in perpetuity'.

The object of the said lease had again been specifically set out in clause

1

of the agreement of 1982. The other clauses of the said agreement

which recorded also the terms and conditions of the transaction have

to be understood in the background and context of the said object. In

clause 3 of the agreement of

1982, no doubt it was recorded that

Bangladesh shall have

undistu~bed possession and use of the area

leased but the said clause also categorically recorded that such posses-

sion and use would be for the purposes stated

in clause 1.

---

D In clause 2 of the agreement of 1982, it was specifically recorded

that sovereignty over the leased area would continue to vest in India.

This meant that Bangladesh would not exercise sovereignty over the

said area. This

is a specific declaration by the two

States and there was

no reason why this particular clause should be ignored or overlooked

and

the effects and implications thereof minimised. Clause 2 further

E

· indicated that under the said agreement only limited rights were being

granted to Bangladesh and not all or all absolute rights over the terri­

tory involved, which would result in the surrender of sovereignty over

the area by India. No right to administer the said territory had been

given to Bangladesh. The specific rights which had been given to

Bangladesh under the said

agr~ements were, inter alia, the right of free

F and unfettered movement over and across for passage through the

leased area. This right would be available to Bangladesh citizens

in­

cluding police, para military, and military personnel who would be

entitled to move to the leased area with supply and equipment includ­

ing arms without passport

or travel documents. A further right of

movement

of goods over and through the area without payment of

G customs duties

or other similar tax or levy has been conferred by the

agreement. Having examined the rights

in the agreements, we are of

the opinion that this did not amount to lease or surrender cif

sovereignty as understood in the international law. In the

Panama

Canal's case (See Hudson, Cases. Cases & Other Materials on Interna­

tional Law, 3rd Edition,

1951, pp. 222-3.

See also Ian Brownlie's

H Principles of Public International Law, 3rd Edn., p. 116) a lease was

'

U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.) 49

granted to the United States in perpetuity. The United States was

given the occupation and control of the area concerned over and below

the surface for the construction and protection of the canal. Move­

over, the United States was allowed under the lease to exercise over

the canal zone all rights, power and authority which it would possess if

it were the sovereign of the territory. These are not the tenns of the

agreement before us. In the instant case, the major right which had

been conferred on Bangladesh was the right of free movement over the

area.

The right of undisturbed possession and use of the area under the

agreement of

19'82 has to be understood in the context of the right of

free movement.

It appears to us that it is not possible to hold that

Bangladesh would have a right to occupy pennanently the area or to

construct buildings and fortification therein or to lay railway lines

through the area.

If such rights are sought to be exercised by

Bangladesh in the area, the same would interfere with rights of free

movement in the area of Indian citizens and of Indian goods. As the

right to free movement over the area by both the countries are being

retained

or granted, therefore, neither country and in particular,

Bangladesh can generally occupy or block any part of the area. The

Division Bench held that under the said agreements, specific and

limited rights were being granted to bangladesh.

Such rights were not

exclusive and the aggregation thereof would not amount to a lease,

as is commonly understood in favour of Bangladesh.

We are of the

opimon

that the Division Bench was right in the view it took.

Afortiorari, the said transaction did not amount to cession of the

said area of Teen Bigha in favour of Bangladesh.

Cess.ion as under­

stood in international law would result in an actual and physical trans­

fer of the said area to Bangladesh following which Bangladesh would

have the exclusive right to treat the said transferred territory as part of

its own territory and exercise full control, dominion and right over the

same. This is not the position

or the situation which is contemplated

under the agreements. The rights intended to be conferred on Bangla­

desh under the said agreements, would amount to what

is known as

"servitude" in International law. Certain restrictions had been

imposed on India over its absolute sovereignty

in the area to serve

purpose in favour of and in the interest of Bangladesh. These

are,

however, sell-imposed restraints. On a proper construction of the

agreements of

1974 and 1982 and the individual clauses, it cannot be

said

that as a result of the said agreements, India ha.d surrendered its

sovereignty over the said area of Teen Bigha in favour of Bangladesh

or that Bangladesh has become the

soverei!lll over the said territory to

A

B

c

D

E

F

G

H

50 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

A the exclusion of India. Sovereignty is a quality of right. It is a bundle of

rights.

It depends on the facts and the circumstances of each case.

~

B

Apart from anything else, the specific clause in the agreement of 1982

that sovereignty over the area shall continue to vest in India stands in

the way of a contrary construction. This clause distinguishes the

con-

cessions in the instant case from the grant in favour of the United

States in

Panama case (supra), where the United States received all

right, powers and authority within the zone of lease which it could

possess and exercise if it were the sovereign of the territory leased.

The statements on the relevant aspect of International

law in the

V

authoritative text books noted earlier indicated that in the present

c

and modem context sovereignty has and must have a more restrictive

meaning that it had in the earlier centuries when on the emergence of

individual national States, no limits on the power ot states were

acknowledged. See 'Introduction

to International Law' by Strake

(supra). Any State in the modem times has to acknowledge and accept

customary restraints on its

_sovereignty inasmuch as no State can

D exist independently·and without reference to other States.

Under the

general international

law the concept of inter-dependence of States

has come to be accepted. Even without the said agreements of

1974

and 1982, so long as Dahagram and Angarpota remain part of Bangla­

desh, the latter under the general International

law and customs

would have a right to access to the said enclave through the territory of

E India.

It is this international practice and customs which has been

recognised in the said agreements except that the military, para­

military and police of Bangladesh with arms, ammunitions and equip­

ments have also been given a right of passage through the area. The

concessions given to Bangladesh over the said area might amount to

servitudes suffered by India in its territory,

as known in international

F

law. See the observations of

Oppenheim, 8th Edition, p. 537-538 and

also Max Sorensen in Manual of Public International

Law, 1968 Edi-

~

'

tion, which states that the acceptance of servitudes does not represent ---'­

any negation of sovereignty. The term "servitude" means nothing

more than accepted restrictions and grant of servitude does not

amount to cession of territory. The Division Bench

was unable to

G accept the contention that the use of the expression 'residual jurisdic­

tion' in clause 9

of the agreement of 1982 indicates that India only

retained residual sovereignty over the area and the defacto and real

sovereignty in the said area has been surrendered to Bangladesh. The

said expression in clause 9 refers to nothing more than the jurisdiction

to

be exercised by India in respect of incident occurring in the said H territory involving law and order, which may or may not amount to_

U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 51

commission of a criminal offence. The fact that certain old disputes

between India and Pakistan regarding the said

12 thanas in the

Sylhet

District of Assam have not been settled with Bangladesh by the said ·

agreements of 1974 and 1982 and that might remain pending is of no

relevance to the legality and validity of the said agreements. The Divi­

sion Bench expressed the view that perhaps the letters of the

two

countries will take remedial measures.

On clause 9; it was submitted

· that the Bangladesh national committing an offence in the said area of

Teen Bigha involving another Bangladesh national would be dealt with

by the law enforcing agency of Bangladesh in accordance with the laws

of Bangladesh. If the said territory remains a part of the territory of

India, then

in such cases, the law enforcing agency and the courts in

India would not exercise their normal jurisdiction in respect of an

offence committed

by a Bangladesh national in the territory of India.

This may necessitate suitable changes in the

laws of India.

The Division Bench for the reasons indicated above, made the

following order:

"The respondents before implementation of the said agree­

ments of

1974 and 1982 are directed:

A

B

c

D

(a) To amend the

Constitution of India suitably so that the

Berubari Union is not transferred to Bangladesh along with E

the other territories as contemplated

by the 9th Amend­

ment

of the

Constitution. The agreements of 1974 and 1982

are directed to be suitably noted or recorded in the relevant

Schedules to the Constitution authorising the transfer of

the territories to Bangkdesh and not Pakistan.

(b) To take steps for acquisition and acquire the land

owned

by Indian

Citizens in the said area in accordance

with law;

F

(c) To consider and effect suitable amendment of Indian

Law and in particular, the Indian

Penal Code and the Cri-G

minal Procedure Code as presently applicable in the said

area

of Tin Bigha.

The appeals are disposed of

as above. There will be no

order as to

costs."·

.H

A

B

c

D

E

F

G

H

52

SUPREME COURT REPORTS [1990] 3 S.C.R.

We are of the opinion that so far as clause (a) of the ordering

portion of the judgment

is concerned, this .was not warranted. There

was no need to amend the Constitution of India

so that the Berubari

Union No. 12 is not transferred to Bangladesh along with other

territories as contemplated by the Ninth Amendment to the Constitu­

tion. Ninth Amendment to the Constitution has not come into effect.

Therefore, the agreements of

1974 and 1982 did not require to be

suitably notified or included

in that official gazette. The Division

Bench has held that there

was no cession of territory. There was no

abandonment of sovereignty and, therefore, no constitutional amend­

ment was necessary

in view of the facts mentioned hereinbefore.

Justice Monjula Bose delivered a separate but concurring judg­

ment.

She held that sovereignty over the area, in fact, continued to be

vested in India. She further held that there was no intention on the

part of India to give Bangladesh either occupation or possession of

Indian territory as such, but merely "undisturbed possession" and

"use" for the express purpose of "connecting Dahagram with Panbari

Mouza of Bangladesh to enable Bangladesh to exercise sovereignty

over Dahagram and Angarpota and for

no other purpose. We reiterate

the views

of the said learned Judge that the complexities of modern

developed societies need peaceful. co-existence, if the world

is to

survive. Amicable and peaceful settlement of boundary disputes are

in

the interests of the international community. The older and absolute

ideas

of sovereignty and independence has thus necessarily to be

·modified in the dawn of the 21st century. A perpetual right of passage

and other incidental rights given to Bangladesh for the limited purpose

for exercising the sovereignty over her own two enclaves within the

territory of India and/or if imposed restrictions on itself

by India does

not tantamount to transfer of interest in land. No constitutional

amendment was necessary in view of the fact that 9th amendment had

not come into effect as there

was no appointed day fixed by the

Parlia­

ment and the principles enunciated by the decision of this Court in

A.K. Roy's case (supra). Learned Attorney General submitted that

the Division Bench was in error in directing changes and constitutional

amendment

as it has purported to do. In A. K. Roy's case (supra), this

Court indicated the contention at p. 272 of the report that the Govern­

ment would be compelled to exercise its power to issue notification

as

to at what date the law has to come into effect. There under section

1(2)

of the 44th Amendment Act, it shall come into force on such date

as the Central Government may, by notification

in the

Official Gazet­

te appoint and different dates may be appointed for different provi-

' '

U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 53

sions of the Act and thus leaving to the Government to fix date in this

case

cannot be interfered and since the appointed day had not been

fixed,

the Ninth Amendment has not come into force.

In that view of the matter, the directions by the Court to amena

the law cannot and should not be given.

See in this connection the

observations

of this Court in State of Himachal .Pradesh & Anr. v.

Urned Ram Sharma & Ors., [1986] 2

SCC 68. In State of Himachal

Pradesh

v. A parent of a Student of Medical College, Simla & Ors.,

[ 1985] 3

SCR 676, this Court at p. 684 of the report reiterated that the

Court cannot group the function assigned to the executive and the

legislature

under the Constitution and cannot even indirectly require

the executive to introduce a particular legislation or the legislature to

pass it

or assume to itself a supervisory role over the law making

activities

of the executive and the legislature. The Court having held

that 9th Amendment to the Constitution has not come into effect and

there being no cession

of any part or territory or abondonement of

sovereignty, there was no cause to direct the legislature to amend or

pass suitable laws. The Division Bench transgressed its limits to that

extent. See in this connection the observations of this Court in State of

Himachal Pradesh v. Urned Ram Sharma, (supra) at pp. 78 and 79 of

the report.

·

A

B

c

D

/ We are of the opinion that the directions of the Division Bench E

of the Calcutta High Court to that extent may be deleted in clause (a)

of the ordering portion. So far as to take steps for acquisition and to

acquire

the land owned by Indian citizens in the said area in accord­

ance with laws

is concerned, it was wholly unnecessary because there

was no land owned by the Indian citizens which was required to be

acquired.

So far as clause (c) of the ordering portion is concerned, the F

Government has already taken steps and has agreed to take steps to

'· -amend the law. But the implementation of the agreeements is not

dependent on such steps being taken.

While we modify the judgment and order

of the Division Bench,

we must observe that this was really a fight over non-issue. The Divi-G

·

sion Bench categorically held that there was.no cession of territory and

no lease in perpetuity. If that is so, without the change in the law or

.J change in the Constitution, the agreement should have been imple­

mented fully and we hope that will be done for the restoration of the

friendly relations between India and Bangladesh.

H

54 SUPREME COURT REPORTS [1990] 3 S.C.R.

A Before we conclude, we must observe that Mr. Khanduja,

B

counsel for respondent submitted that if the will of the people expres­

sed

that such agreement should be implemented then his client has no

objection to such implementation. That

is the good attitude to

aciopt.

The appeal is disposed of in the aforesaid light and deleting the

aforesaid directions of the Division Bench and the appeal

is allowed to

the extent. There will be no orders as to costs.

R.S.S.

Appeals disposed of.