Case nº 1528 of Appeal, January 09, 1969 (case Maganbhai Ishwarbhai Patel VS. Union Of India And Anr.) - VLEX 29692323

Case nº 1528 of Appeal, January 09, 1969 (case Maganbhai Ishwarbhai Patel VS. Union Of India And Anr.)

SUMMARY

The Constitution of India, Art. 1 defines the "territory of India" as including the territories of the States; and the States and 'the territories thereof are as specified in the First Schedule. Article 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power to increase the area of any State or diminish the area of any State. The power to legislate in respect of treaties lies with the Parliament by virtue of entries 10 and 14 of List I of Seventh Schedule, namely, "Foreign affairs; all matters which bring the Union into relation with any foreign country" and "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries". Article 253 provides that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Article 73 lays down that the executive power of the Union 'shall extend to "the matters with respect to which Parliament has power to make laws' and to "the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue 'of any treaty or agreement". With the enactment of the Indian Independence Act, 1947, and the lapse of Paramountcy of the Crown the State of Kutch merged with the Dominion of India. The territory was constituted into a Chief Commissioner's Province and under the Constitution the territory became a Part C State. Its extent was determined by Part C to Sch. 1 of the Con- stitution as "territories which by virtue of an order made under s. 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being administered as if they were a Chief Commissioner Province, of the same name". Kutch was incorporated in the State of Bombay by the States Reorganisation Act, 1956 and was included in the new 'State of Gujarat by the Bombay Reorganisation Act, 1960. The Great Rann of Kutch lies between the mainland of Sind (now part of Pakistan) and the mainland of Kutch, For four months in the year it is mostly under water, for the rest of the year it is marshy land. From the very nature of the terrain the boundaries of the Rann are shifting, its extent depending on the violence of natural elements in different years. The northern boundary of the Rann, therefore, always remained ill defined.. From 1948 onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujrat-West Pakistan Sector. The dispute led 'to great tension between the two countries resulting in armed conflict in 255 1965. In June 1965 the Governments of India and Pakistan concluded ,an agreement for setting up a Tribunal "for determination and demarcation of the border" in the area of Gujarat-West Pakistan. 'Both Governments undertook to implement the findings of the Tribunal. The award to be made by the Tribunal was, it was agreed, to operate as a self executing arrangement; it, was not only to declare the boundary but also to provide for fixing its location on site. By award dated February 19, 1968, the Tribunal accepted the claim of Pakistan to three sectors and two inlets in the Rann of Kutch. The petitioners, who ... (see full summary)

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PETITIONER: MAGANBHAI ISHWARBHAI PATEL Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT: 09/01/1969

BENCH: HIDAYATULLAH, M. (CJ)

BENCH: HIDAYATULLAH, M. (CJ)

SHAH, J.C.

RAMASWAMI, V.

MITTER, G.K.

GROVER, A.N.

CITATION: 1969 AIR 783 1969 SCR (3) 254 1970 SCC (3) 400

CITATOR INFO : RF 1990 SC1692 (13)

ACT: Constitution of India, Arts. 1, 3, 73, 254, Entries 14, 15 List 1, Schedule VII-Award settling disputed boundary-If constitutional amendment necessary for implementation of award-Implementation of treaties, and arbitral awards- Boundary dispute, settlement of and cession of territory difference between.

JUDGMENT: CIVIL APPELLATE JURISDICTION/ORIGINAL JURISDICTION: Civil Appeal No. 1528 of 1968.

Appeal by special leave from the order of March 18, 1968 of the Gujart High Court in Special Civil Application No. 365 of 1968 and Civil Appeals Nos. 1900 and 2118 of 1968.

Appeals from the judgment and order dated May 14, 1968 of the Delhi High Court in Civil Writ Petitions Nos. 343 and 294

259 of 1968 and Petitions under Art. 32 of the Constitution of India for the enforcement of the fundamental rights.

I. N. Shroff, for the appellant (in C.A. No. 1528 of 1968).

A. S. Bobde, G. L. Sanghi, V. K. Sanghi and S. S.

Khanduja, for the appellant (in C.A. No. 1900 of 1968).

C. B. Agarwala, Virendra Kumar, S. S. Pareikh, Uma Mehta and S. S. Khanduja, for the appellant (in C.A. No. 211'8 of 1968).

The petitioner appeared in person (in W.P. No. 109 of 1968).

The petitioner appeared in person (in W.P. No. 234 of 1968).

The petitioner appeared in person (in W.P. No. 402 of 1968).

C. B. Agarwala, B. N. Antani and R. K. Bhatt, for the petitioner (in W.P. No. 403 of 1968).

A. S. Bobde and S. S. Khanduja, for the petitioner (in W.P. No. 409 of 1968).

C. K. Daphtary, B. Sen, R. H. Dhebar and S. P. Nayar, for the Union of India (in C.A. Nos. 1528, 1900 and 2118 of 1968 and W.P. Nos. 234, 402 and 403 of 1968).

G. R. Rajagopal; R. H. Dhebar and S. P. Nayar, for the Union of India (in. W.P. No. 109 of 1968).

C. K. Daphtary, B. Sen, A. Sreedharan Nambiar, R. H.

Dhebar and S. P. Nayar, for the Union of India (in W.P. No.

409 of 1968).

R. H. Dhebar and S. P. Nayar, for the State of Gujarat.

The Judgment of HIDAYATULLAH, C.J., RAMASWAMI, MITTER and

GROVER, JJ. was delivered by HIDAYATULLAH, C.J. SHAH, J. delivered a separate Opinion.

Hidayatallah, C.J. These are five writ petitions under Art.

32 of the Constitution and three appeals against the decisions of, the' High Courts of Gujarat and Delhi. The writ petitions have been filed by Mr. Manikant Tiwari (W.P.

No. 109/68), Mr. Shiv Kumar Sharma (W.P. No. 234/68), Mr.

Madhu Limaye (W.P. No. 402/68), Mr. Gulabshankar Amritlal Dholakia (W.P. No. 403/68) and Mr. Node Sadi Rau (W.P. No.

409/68). The appeals from the Delhi High Court's common judgment, 14 May, 1968 on certificate are by Mr.Shiv Kumar Sharma (C.A. No. 2118/68) and Major Ranjit Singh (C.A.

1900/68) and the appeal from the decision of the Gujarat High Court is in a writ petition filed by Mt. Maganbhai lshwarbhai Patel (C.A. No. 1528/68). The Gujarat High Court, 18 March, 1968, dismissed 260

the petition summarily and the appeal is by special leave of this Court. This judgment will dispose of all of them.

The several petitioners seek a writ of mandamus or any other appropriate writ or order or direction under Article 32 of the Constitution to restrain the Government of India from coding without the approval of Parliament the areas in the Rann of Kutch known as Kanjarkot, Chhadbet, Dharabanni, Priol Valo Kun and two inlets on either side of Tharparkar to Pakistan as awarded to' it in the award, 19 February, 1968, of the Indo-Pakistan Western Bombay case Tribunal.

Mr. 1. N. Shroff (C.A. No. 1528/68), Mr. A. S. Bobde (C.A.

No. 1900/68) and Mr. C. B. Agarwal (W.P. No. 403/68) represented three such petitioners. Mr. Shiv Kumar Sharma, Mr. Madhu Limaye and Mr. Manikant Tiwari argued their own matters. The Union of India was represented by Mr. C. K.

Daphtary, former Attorney General of India, who had also conducted the case for India before the Tribunal.

The Indian Independence Act of July 18, 1947, (an Act of the British Parliament) created from August 15, 1947 two domi- nions known as India and Pakistan. By the same statute the paramountcy of the British Crown over the States of Kutch Santalpur, Tharad, Suigam, Way and Jodhpur lapsed and they soon acceded to and merged with India. The former British Indian Province of Sind was included in Pakistan while the Presidency of Bombay was part of India. Between these two lies the Great Rann of Kutch, Sind shutting on the North and West and the Indian mainland on the South and East.

The Rann is a vast expanse of water and desert. For part of the year even the desert is covered by water. At other times it is either soft mud or land with grass. No one ordinarily lives in that area which the onagers roam at large.

It appears that from July 1948 Diplomatic Notes were ex- changed between the two Governments with regard to the boundary 'between the areas known as Gujarat and West Pakistan. The difference led to open hostilities in April 1965. On June 30, 1965 the two Governments reached an agreement which read

"Constitution of the Tribunal, Proceedings.

On 30 June, 1965, the Government of India and the Government of Pakistan concluded an Agreement, reading as follows : Whereas both, the Governments of India and Pakistan have agreed to a cease-fire and to restoration of the status quo as at 1 January, 1965, in the area of the Gujarat-West Pakistan border in the confidence that this will also contribute to a reduction of the present tension along the entire Indo-Pakistan border;

261 Whereas it is necessary that after the status quo has been established in the aforesaid Gujarat-West Pakistan border area, arrangements should be made for determination and demarcation of the border in that area;

NOW, THEREFORE, the two Governments agree that the following action shall be taken in regard to the said area Article 1: There shall be an immediate cease-fire with effect from 0030 hours GMT on 1 July 1965.

Article 2 On the cease fire (i) All troops on both sides will immediately begin to withdraw;

(ii) This process will be completed within seven days;

(iii) Indian police may then, reoccupy the post at Chhad Bet in strength no greater than that employed at the post on 31 December 1964;

(iv) Indian and Pakistan police may patrol on the tracks on which they were patrolling prior to 1 January 1965, provided that their patrolling win not exceed in intensity that which they were doing prior to 1 January 1965 and during the monsoon period will not exceed in intensity that done during the monsoon period of 1964;

(v) If patrols of Indian and Pakistan police should come into contact they will not interfere with each other, and in particular will act in accordance with West Pakistan- India border ground-rules agreed to in January 1960;

(vi) Officials of the two Governments will meet immediately after the cease-fire and from time to time thereafter as may prove desirable in order to consider whether any problems arise in the implementation of the provisions of paragraphs (iii)to (v) above and to agree on the settle- ment of any such problems.

262 Article 3 (i) In view of the fact that (a) India claims that there is no territorial dispute as there is a well established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre-partition maps, which needs to be demarcated.on the ground.

(b) Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500. square miles of territory.

(c) At discussions in January 1960, it was agreed by Ministers of the two Governments that they would each collect further data regarding the Kutch-Sind boundary and that further discussions would be held later, with

a view to arriving at a settlement of this dispute; as soon as officials have finished the task referred to in article 2 (vi), which in any case will not be later than one month after the cease-fire, Ministers of the two Governments will meet in order to agree on the determination of the border in the light of their respective claims, and the arrangements for its demarcation. At this meeting and at any proceedings before the Tribunal referred to in article 3(ii) and (iv) below, each Government will be free to present and develop their case in full.

(ii) In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the. two Governments shall, as contemplated, in the Joint Communique of 24 October, 1959, have recourse to the Tribunal referred to in (iii) below for determination of the border, in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties.

(iii) For this purpose there shall be constituted, within four months of the cease- fire a Tribunal consisting-of three persons, none of whom would be a national of either India or Pakistan. One member shall be nominated by each Govern and the third member, who will be the Chairman, shall be jointly selected by the two Governments. In the event of the two Govern- ments failing to agree on the selection of the Chairman within three months of the cease fire, they shall request the Secretary-General of the United Nations to nominate the Chairman.

(iv) The decision of the Tribunal referred to in (iii)above shall be binding on both Govern- ments and shall not be questioned on any ground whatsoever. Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings. For that purpose the Tribunal shall remain in...

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