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

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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 claimed infringement of the fundamental rights guaranteed under Art. 19(1)(d)(e) and (f) of the Constitution, moved this Court under Art. 32 to restrain the Government of India from ceding to Pakistan the territories in the Rann of Kutch awarded by the Tribunal. None of the petitioners claimed that the award bad to be rejected. They contended that the territories were part of India and had always beep so from the establishment of the two Dominions, that India had exercised effective administrative control over them and-that giving up a claim :to those territories involved cession of Indian territory which could only be affected by an amendment of the First Schedule to the Constitution. The Union of India, on the other hand, contended that no cession of territory was involved since the dispute concerned the settlement of boundary which was uncertain, that the award itself was the operative treaty and after demarcation of boundary it was only necessary to exchange letters recognising the established border.

HELD : The Award does not purport to nor does it operate as giving rise to an obligation to cede Indian territory and therefore no constitutional amendment is necessary. The decision to implement the Award by exchange of letters, treating the award as an operative treaty after the boundary has been marked, is within the competence of the executive wing of the Government. [288 H-289 B]

(Per Hidayatullah, C.J., Hamaswami, Mitter and Grover, JJ.) The Award has been accepted by the Government of India and therefore it is binding. An examination of International Arbitration Awards only reveals that generally an Award is not accepted when the terms of submission are departed from or there are fatal missions,contradictions obscurities or the arbitrators substantially exceeded their jurisdiction.

None of these factors obtains here and the petitioners have rightly refrained from challenging the binding nature of the Award. [269 F]

(ii) When a treaty or an Award after arbitration comes into existence it has 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, possesses the power to implement it. The practice of nations is different in the matter of': implementation of treaties and arbitration awards in boundary disputes in particular. The question is one of domestic as well as International Law. In the United States of America a treaty is the Supreme Law and it is only when the terms of a treaty require that a law must be passed that it has to be so passed. Under the French Constitution treaties that require ratification by law include treaties of cession, exchange or addition of territory. In England, as no written constitution exists, difference is made between treaties of peace when the Crown acts without obtaining the approval of Parliament and session in peace time when such approval must be had. But even so a distinction is made in the case of British possessions abroad and the United Kingdom. Again a difference is made in cases involving minor changes where boundaries have to be ascertained and adjusted. [275 G]

256 Foster v. Neilson 2 Peters 253; Dickinson Law of Nations, Blackstone's Commentaries, Forsyth Hansard vol. CLXIX p: 230, 231; The Parlement Belge, [1879] 4 P.D. 129; Walker v.

Baird [1892] A.C. 491 and Attorney-General for Canada v.

Attorney-General for Ontario, [1937] A.C. 326 it 347, referred to.

In British India Parliamentary sanction was not necessary for cession of territory. The Constitution of India does not contain any clear direction about treaties such as is to be found in the United States and French Constitutions.

Therefore in our country we can only go by inferences from our Constitution, the circumstances and precedents. The legislative entries which enable Parliament to enact laws in respect of treaties are to be read with Art. 253. The Article adds nothing to the legislative entries but confers exclusive power of law making upon Parliament. [276 B, C;

277 A-B]

The precedents of this Court are clear only on one point, namely, that no cession of Indian territory can take place without a constitutional amendment. The first Berubari case dealt with transfer of territory which was de facto and de jure Indian territory and therefore as the extent Indian territories as defined in Art. 1 read with the 1st Schedule was reduced a constitutional amendment was held necessary.

The second Berubari case concerned territory which was de facto under administration by India but being de jure that of Pakistan, transfer of that territory which was not a part of Indian territory was held not to require a constitutional amendment. Neither case dealt with a boundary dispute. [282

G283 C]

In re : The Berubari Union and Exchange of Enclaves (The First Berubari case), [1960] 3 S.C.R. 250 and Ram Kishore Sen v. Union of India (The second Berubari 'case), [1966] 1

S.C.R. 430, explained.

The question on which side a disputed border falls is one of authority. Who in the State can be said to possess Plenum dominium depends upon the Constitution and the nature of adjustment. As to the necessity of it courts must assume it as a matter of law. It is scarcely to be thought that the validity of the action can ever depend upon the judgment of a court. A boundary dispute and its settlement by an arbitral. tribunal cannot be put on the same footing as cession of territory. An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing the neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary, for permanently fixing the boundary. Ordinarily, an adjustment of a boundary, which International Law regards as valid between two nations, should be recognised by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when parliamentary intercession can be expected and should be had. This has been the custom of nations whose constitutions are not sufficiently elaborate on this subject. [283 D284 B]

(iii)The petitioners have not established that the territories ceded to Pakistan was a part of Kutch. The phrase "as if they were a Chief Commissioner's Province of the same name" in Part C, to first Schedule of the Constitution must be understood as was laid down by this Court in the second Berubari case where the word "as if" was held to refer to "territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements." The history of Kutch does not establish that the territories were part of Kutch. The White Paper on Indian States only gives the area of Kutch not the boundaries. The Kutch merger agreement gives no clue to the boundaries 257

and also leaves the matter at large. Also, in the States Merger (Chief Commissioner's) Province Order, 1949, in the States Reorganisation Act, 1956 and in the Bombay Reorganisation Act, 1960 the boundaries of Kutch are not mentioned. Therefore, none of these documents is of any help in determining boundaries or that the disputed area was definitely a part of India. The assertion of the Prime Minister of India in 1956 and later in 1965 that the area belonged to India was only a statement and cannot be held to he of an evidentiary character. The claim map and other evidence produced by India before the Tribunal show that there has never been clear demarcation of boundary in this area. [281 H, 286 AB]

(iv) There is no evidence of administration 'of the disputed area by India. The existence of Watch and Ward Officers or the establishment of a polling booth for them at election time cannot connote administration such as would make them territory of India. The diplomatic notes began soon after the establishment of the two dominions and the occupation may have meant de facto control but there was no proof of de jure occupation or any other administration. Sovereignty over an area is a matter of inference and unless real existence of sovereignty over this area is proved India cannot be in de jure occupation.

(Per Shah J.) : (i) The Constitution of India makes no provision making legislation a condition of the entry into an international treaty in times of war or peace. The executive is qua the State competent to represent the State in all matters international and may incur obligations which in International Law are binding upon the State. There is a distinction between the formation and the performance of the obligations constituted by a treaty. Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others. The power to legislate in respect of treaties lies with the Parliament and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens and others which are justiciable are not affected, no legislative measure is needed to, give effect to. the agreement or treaty. [299 D-F]

The Parlement Belge, [1879] 4 P.D. 129, Walker v. Baird,

[1892] A.C. 491 and Attorney-General for Canada v. Attorney- General for Ontario, [1937] A.C. 326, referred to.

The argument that power to make or implement a treaty agreement or convention can only be exercised under authority of law proceeds upon a misreading of Art. 253.

The effect of Art. 253 is that if a treaty agreement or convention with a foreign State deals with a subject matter within the competence of the State Legislature, the Parliament alone has,. notwithstanding Art. 246(3) the power to make, laws to implement the treaty agreement or convention. In terms the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the executive power conferred by Art., 73; the exercise of this power must be supported by legislation only if in consequence of the exercise of the power, rights of citizens or others are restricted or infringed or laws are modified. [299 G-300 C]

(ii) In implementing the Award there is no cession of the territory of India to Pakistan. A review of the terms of the agreement, the unanimous introductory part of the Award and the terms of the agreement relating to the implementation of the Award and the final Award, make it abundantly clear that the dispute relates to the boundary between the two.

2 58 States, settlement of dispute which relates to the alignment of an undefined boundary between two States involves no cession of territory by either State. In the First Berubari case this Court advised that the Indo Pakistan agreement could be implemented under the authority of a constitutional amendment only, because, there was no question of demarca- tion of a disputed boundary; it was a case of pure cession of territory. Therefore the principle of the first Berubari case has no application to the facts of the present case.

The second Berubari case related to transfer of territory which though temporarily under Indian administration had never become Indian territory. The principle of this case is against the contention raised by the petitioners. [301 C- 302 F]

In re : The Berubari Union and Exchange of Enclaves (the first Berubari case),, [1960] 3 S.C.R. 250 and Ram Kishore Sen V. Union of India, (the second Berubari case),, [1966] 1

S.C.R. 430 explained.

There is no definite and reliable piece of evidence which establishes ;that the disputed seam were part of the State of Kutch and, therefore, part of the territory of India.

Conflicting claims were made from time to time by the British authorities and the Maharao of Kutch; and about the exercise of sovereign rights over the areas now in dispute the evidence in scrappy and discrepant. Different positions were adopted by the officers of the Government of India according as the exigencies of a particular situation demanded. These statements or assertions do not evidence an existing state of affairs; they were only made to support or resist claims then made, or to serve some immediate purpose.

[305 F-H]

Regarding the two inlets the ultimate decision of the Tribunal is founded on considerations of expediency and not on strict determination of rights. But the ground on which the Award is made against the claim made by the Government of India, does not strengthen the rights of the claimants for relief. There being no evidence of exercise of sovereign authority over the inlets by the Maharao of Kutch this Court cannot treat them as part of Indian territory.

Exercise of de facto authority over the territory in the'

sectors after the disputes took concrete form is evidence of an assertion merely and not evidence of pre-existing sovereign rights. ,The merger of the State of Kutch with the Dominion of India does not result in vesting of sovereign authority over the territory unless the suzerainty of the State of Kutch is established. The Award does no more than define on the surface of the earth a boundary which has at all material times remained indefinite because of the nature of the terrain, the shifting nature of the border of what was called Rann, the highly discrepant and 'conflicting claims made from time to time by the British authorities as well as the Kutch-State authorities before the State merged with the Dominion of India in 1948 and the persistent refusal of the British authorities, though there were several occasions, to demarcate the boundary between Sind and the Rann of Kutch. [307 G; 208 D-E]

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

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 ...

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