Union of India Vs. Sudhansu Mazumdar
& Ors  INSC 97 (29 March 1971)
SIKRI, S.M. (CJ) SHELAT, J.M.
CITATION: 1971 AIR 1594 1971 SCR 244
Cession-Constitution (Ninth Amendment) Act,
1960-Cession of territory to Pakistan-If acquisition within the meaning of Art.
Constitution of India, 1950, Art.
31(2)-Cession of territory to foreign State if acquisition.
Constitution of India, 1950-Article
132(1)-Certificate by Single Judge Propriety of.
Pursuant to the Indo-Pakistan Agreement,
1958, and after this Court's. Advisory opinion in In re the Berubari Union and
Exchange and Enclaves,  3 S.C.R. 250, Parliament enacted the Constitution
(Ninth Amendment) Act, 1960 for cession of part of the territory of India to
Pakistan. In order to implement the provisions of the Act a physical
demarcation of the portion that had to be ceaded was necessary. The respondents
filed a petition under Art. 226 of the Constitution before the High Court challenging
the validity of the proposed demarcation principally on the ground that they
would be deprived of their property without compensation. A single Judge of the
High Court held that the cession of the territory involved transfer of
ownership and other private property rights to Pakistan through the Union of
India, which, though outside cl 2A of Art. 31 was compulsory acquisition within
the meaning of Art. 31(2).
The single Judge granted a certificate under
Art. 132(1) for appeal to this Court.
HELD:(i) No question of acquisition within
the meaning of Article 31(2) is involved in the present case. The Constitution
(Fourth Amendment) Act, 1955, makes it clear that mere deprivation of property
unless it is acquisition or requisitioning within the meaning of cl. 2A will
not attract cl. (2) and no obligation to pay compensation will arise there under
and it is essential under clause (2) that in order to constitute acquisition or
requisitioning there must be transfer of the ownership or right to possession
of the property to the State or to a corporation owned or controlled by the
State. Cession indisputably involves transference of sovereignty from one
sovereign State to another. But, there is no transference of ownership or right
to possession in the properties of the inhabitants of the territory ceded to
the ceding State itself. The effect of the Constitution (Ninth Amendment) Act,
1960, can by no stretch of reasoning be regarded as transfer of the ownership
or right to possession of any property of the respondents to the
"State" within the meaning of Article 12 of the Constitution.
[202C-F, H] Charanjit Lal Chowdhury v. Union of India,  S.C.R.
869, 902, State of West Bengal v. Subodh
Gopal Bose & Ors.  S.C.R. 587, Dwarkadas Shrinivas of Bombay v.
Sholapur Spinning & Weaving Co. Ltd. & Ors.  S.C.R. 674, Saghir
Ahmed v. State of Uttar Pradesh,  1 S.C.R. 707 and Gullapalli Nageswara
Rao & Ors. v. Andhra Pradesh State Road Transport Corporation & Anr.
 Supp. 1 S.C.R. 319, referred to.
245 (ii) This Court has on earlier occasions,
observed that the practice of single Judge deciding the case and giving a
certificate under Article 132 (1) for appeal to this Court, although
technically correct, was an improper practice and that such a certificate
should be given only in very exceptional cases where a direct appeal was
necessary. The present case may be of an exceptional kind; but this Court has
been deprived of the benefit of the judgment of a larger Bench of the High
Court on points which are of substantial importance. [246B] R.D. Agarwala.
& Anr. v. Union of India & Ors..
C.A. Nos. 2634/69 etc. dt. 23-2-1970 and
Union of India v.J. P. Mitter,  3 S.C.R. 483, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 974 of 1968.
Appeal from the judgment and order dated
December 22, 1967 and January 3, 1968 of the Calcutta High Court in Civil Rule
No. 3369(W) of 1966.
L. M. Singhvi and S. P. Nayar, for the
A. K. Dutta and K. Rajendra Chowdhary, for
respondents Nos. 1 to 3.
Santosh Chatterjee and G. S. Chatterjee, for
respondent No.4 The Judgement of the Court was delivered by Grover, J.-This is
an appeal from a judgment of a learned single judge of the Calcutta High Court
who granted a certificate under Art. 132(1) of the Constitution. It involves
primarily the question whether the cession of a territory by India as a result
of a treaty with Pakistan would be compulsory acquisition of the property
comprised in that territory by the Union of India and would, therefore, attract
the provisions of Art. 31 of our Constitution.
At the outset it may be mentioned with
reference to a preliminary objection which has been raised by the respondents
that the judgment under appeal was delivered by the learned single Judge in a
petition under Art. 226 of the Constitution and it appears that on an oral
prayer made to him he granted a certificate under Art. 132(1) even though under
the Letters Patent of the High Court an appeal lay to a division bench of that
court. This Court has said on an earlier occasion in clear and unequivocal
terms that the practice of a single Judge deciding the case and giving a
certificate under Art. 132(1) for appeal to this Court, although technically
correct, was an improper practice. The right of the parties to file an appeal
in the High Court itself against the decision of the single Judge should not be
short-circuited. Indeed 246 in R. D. Agarwala & Another etc. v. Union of
India & Ors.(1) the certificate was cancelled. In Union of India v. J. P.
Mitter(2) it was observed that a certificate
by a single judge under Art. 132(1) should be given in very exceptional cases
where a direct appeal was necessary. Even though the present case may be of an
exceptional kind we have been deprived of the benefit of the judgment of a
larger bench of the High Court on points which are of substantial importance.
Presumably a number of matters which had no bearing on the real questions to be
determined and which have been dealt with by the learned single judge would
have been either satisfactorily disposed of or would not have been the subject
matter of discussion by the court, being irrelevant and unnecessary, if the
decision had been given by a larger Bench.
The facts may be shortly stated. On September
10, 1958, an agreement was entered into between the Government of India and
Pakistan called the Indo-Pakistan Agreement.
Item No. 3 of the agreement related to
Berabari Union No. 12 which was a group of, villages lying within the territory
of India. This territory was to be so divided as to give one half area to
Pakistan. The other half adjacent to India was to be retained by India.
Subsequently a doubt arose whether the implementation of the agreement relating
to Berubari Union required Legislative action either by way of an Act of
Parliament relatable to Art. 3 of the Constitution or by way, of a suitable
amendment of the Constitution in accordance with the provisions of Art. 368 or
both. A similar doubt had also arisen in respect of another item of the
agreement which related to the exchange of certain enclaves but with which we
are not concerned. The President of India made a reference to this Court under
Art. 143(1), of the Constitution for its advisory opinion. The opinion was
deliverted on March 14, 1960. (In Re': The Berubari Union and Exchange of
Enclaves Reference Under Article 143 (1) of the Constitution of India(3). As
mentioned in the advisory opinion Berubari Union No. 12 had an area of 8-75 Sq.
Miles and a, population of 10 to 12 thousand residents.
It was situated in the district, of
Jalpaiguri. This Court expressed the view that since the agreement between
India and Pakistan amounted to cession of a part of the territory of India in
favour of Pakistan its implementation would naturally involve the alteration of
the content of and the consequent amendment of Article and of the relevant part
of the First Schedule to the Constitution which could be made only under
Article 368. Pursuant to the opinion delivered by this Court the Parliament
enacted (1) C. As. 2634/69 & 63/70 decided on 23-2-70.
(2)  3 S.C.R. 483.
(3)  3 S. C. R. 250.
247 the Constitution (Ninth Amendment) Act
1960 on December 28, 1960. In order to implement the provisions of the above
Act a physical division of the Berubari Union in accordance with the agreement
and demarcation of the portion that was to go to Pakistan was necessary. Some
of the, inhabitants of the Berubari Union filed a petition under Article 226 of
the Constitution challenging its proposed partition with the object of transferring
its southern part to Pakistan. The Writ petition was dismissed and an appeal
was brought to this Court which was disposed of on August 11, 1965. (Ram
Kishore Sen & Others v. Union of India & Ors.)(1). It was held that the
Ninth Constitution Amendment Act had been passed by the Parliament in the
manner indicated in the advisory opinion of this Court. No merit was found on
the other points which were agitated. The appeal was dismissed.
On June 11, 1965, the respondents filed
another petition under Article 226 of the Constitution before the High Court
challenging the validity of the proposed demarcation principally on the ground
right of citizenship conferred by also of their property without payment of
D. Basu J. called for an affidavit in opposition
and after hearing lengthy arguments delivered an elaborate judgment A.I.R. 1967
Cal. 216) directing the issue of rule nisi limited to ground No. 3 of the writ
petition. This ground was:
"For that no Act of the State is
involved in the transfer of Berubari Union No. 12 to Pakistan and as such your
petitioners are entitle to compensation in terms of Art. 31(2) of the
Constitution inasmuch as the operation of transfer involves deprivation of
their right to property for which no provision has been made in the
Constitution 9th Amendment Act, 1960." According to the allegation in the
writ petition respondent Dhanoswar Roy had 2 acres 64 decimals of khas land in
the area in question. It was also claimed that the respondents had their
household property, ancestral homes and cultivated lands in the Berubari Union
The constitutional question formulated by the
learned judge was whether compensation under Article 31(2) of the Constitution
was to be provided for the respondents before the demarcation in implementation
of the Constitution (Ninth Amendment) Act took place,. We may mention some of
the material conclusions of the learned judge out of the numerous matters dealt
with by (1)  1 S. C. R. 430.
248 him. These are: (1) the treaty making
power must be exercised subject to the fundamental rights guaranteed by the
Constitution. (2) Once it is established that a treaty making law involves a
transfer which attracts Art. 31(2) it cannot be exempted from the requirements
of that Article on the ground that it is a treaty of "cession". (3)
Although under the International Law the private rights of the inhabitants of
the ceded territory are not instantly affected they shall have no legal right
to assert against the new State under its own municipal law to which such
inhabitants shall be subject from the moment the cession is complete. (4) As a
result of cession it would be competent for the Government of Pakistan to deal
with the disputed territory as absolute owner in complete disregard of the
existing rights of the respondents. "The rights of the Government of
Pakistan under its municipal law would in no way be less than what would have
happened if the lands were vested in that Government by a direct Act of the
Government of India. Such vesting the Government of India could arrange for
only after acquiring the disputed lands". (5) The present case will not be
covered by clause 2(A) of Article 31 of the Constitution as so far all the
cases which have been held to fall within its purview have been those in which
there was exercise of the regulatory power of the State. (6) The cession of the
disputed properties sought to be implemented by the impugned demarcation
involved compulsory acquisition of those properties by the Union of India
within the meaning of Art. 31(2) and unless competent legislation is enacted to
provide for compensation the Union cannot announce the appointed day within the
meaning of S. 2(A) of the Constitution (Ninth Amendment) Act 1960 and for
constructing pillars to demarcate Berubari Union No. 12 for the purpose of
effecting the transfer of the specified portion to Pakistan.
According to Dr. Singhvi learned counsel for
the appellant the High Court has fallen into serious errors inasmuch as it has
proceeded on many assumptions, reasoned on a priori theories and has founded
its judgment on certain premises which do not exist either in fact or in law.
Stress has been laid on the true import of "cession". According to
all authorities on International Law "cession" is the transfer of
sovereignty over the State territory by the owner State to another
State"(1). Under the International Law two of the essential attributes of
sovereignty are the power to acquire foreign territory as well as the power to
cede national territory in favour of foreign State(2) (supra at p. 281).
Hardship is certainly involved in the fact that in all cases of cession the
inhabitants of the territory ceded lose their old citizenship and have to
submit to a new sovereign whether they like it or not. As the object of cession
is sovereignty over the ceded territory all such (1) Oppenheim's International
Law Vol. 1, 8th Edn. at pp. 547, 551.
(2)  3 S.C.R 250.
249 individuals domiciled thereon as are
subjects of the ceding State become ipso facto, by the cession, subjects of the
acquiring .,State(1) (supra at p. 551).
Dr. Singhvi says that the first premise on
which the High Court has proceeded is that as a result of cession it would be
,competent for the Government of Pakistan to deal with the disputed territory
as an absolute owner in complete disregard of the .existing rights of the
respondents. In other words it has been assumed that the Government of Pakistan
will not recognise owner-ship or other similar rights of the respondents in the
lands and properties which belong to them. This, Dr. Singhvi claims, is
contrary to the rule enunciated by Chief Justice Marshall in United States v.
Juan Perchman(2) in the following words :
"The modern usage of nations, which has
become law, would be violated; that sense of justice and of right which is
acknowledged and felt by the whole civilised world would be outraged, if
private property should be generally confiscated and private rights annulled.
The people change their allegiance; their relation to their ancient sovereign
is dissolved; but their relations to each other and their rights of property,
remain undisturbed." The rule set forth in the Perchman case has been
followed in over forty American cases and has been accepted as the rule of
Inter,national law in English, French, German and Italian law(3).
This Court has had occasion to consider fully
the Perchman's case as also the English law apart from several other authorities
on International law and the decisions of the Permanent Court of International
Justice. In State of Gujarat v. Vora Fiddali Badruddin Mithibarwala(4) the
following passage from the judgment of Mudholkar J., at pages 590, 591 gives
tersely the position which obtains in our country :-"Thus while according
to one view there is a State succession in so far as private rights are
concerned according to the other which we might say is reflected in our laws,
it is not so. Two concepts underline our law; one is that the inhabitants of
acquired territories bring with them no rights enforceable against the new sovereign.
The other is that the municipal courts have (1) Oppenheim's International Law
Vol. 1,8th Edn. at pp. 547, 551.
(2) 8 L. ed. 604.
(3)Extracts from the Law of Nations (2nd Edn.
1953 P. 237 of. F. B. Sayre, "Change of Sovereignty and Private Ownership
of Land," 12 XIXL A. J. I. L. (1918), 475, 481, 495-497.
(4)  6 S C. R. 461.
250 no jurisdiction to enforce, any rights
claimed by them, even by virtue of the provisions of a treaty or other
transaction internationally binding on the new sovereign unless their rights
have been recognised by the new sovereign." The above case related to
rights pertaining to the exploitation of the forests which were claimed under a
Tharao which was held by the 'majority to be a grant to the jagirdars by the ruler
of the erstwhile Sant State which merged in the )Dominion of India as from June
10, 1948. It wag thus held that the rights derived by the inhabitants of 'the
'ceded territory from its former rulers could not be enforced by them against
the new sovereign in the courts of that sovereign unless they had been
recognised by the 2,1 new sovereign. It is altogether unnecessary to discuss
the principles established by. the decisions of this Court further because they
can afford no Assistance in deciding no question arises of how the private a
particular territory would be affected ceaded to India. The session involved
the present case in which rights of the inhabitants of if the same Were to be
is of territory to Pakistan and no evidence was placed before the High Court
from which it could be concluded that inder the Pakistan laws the private
rights of the inhabitants therein would not be respected in accordance with the
ordinary principles of International law. In this situation it would be a
wholly wrong approach to conclude that the respondents are bound to loge all
their property rights in the territory which is being ceded by India to
Pakistan. Even on the assumption that the respondents will not be entitled to
enforce their private rights in the municipal courts of Pakistan unless they
are recognised by the new sovereign it is incomprehensible how such a prospect
or possibility can attract the applicability of Art. 31(2) of our Constitution
so as to entitle the respondens to compensation as provided thereby. Nor can we
understand the process of reasoning by which the High Court has reached the
result that cession would be tantamount to vesting by the direct act of the
Government of India of the properties of the respondents in Pakistan.
ln order to determine whether the case of the
respondent,% would fill within Art. 3.1(2) ,it is necessary to set out that
provision as also para 2A of that, Article which was added by the Constitution
(4th Amendment) Act 1955:
(2)"No property shall be compulsorily
acquired or requisitioned save. for a public purpose and save by authority of a
law which provides for compensation for the property so aquired or
requisitioned and either fixes the amount of the compensation or specifies the
principles on which, and the manner in which, the compensation is to be
determined and given; and no such law shall be called in question in any court
on the ground that the compensation provided by that law is not adequate."
(2A) Where a law does not provide for the transfer of the ownership or right to
possession of any property to the State or to a corporation owned or controlled
by the State it shall not be deemed to provide for the compulsory acquisition
or requisitioning of property, notwithstanding that it deprives any person of
his property." As far back as 1950 Mukherjea J. (as he then was) gave the
meaning of "acquisition ' in Charanjit Lal Chowdhury v.Union of India(1)
in the following words:
"Acquisition means and implies the
acquiring, of the entire title of the expropriated owner, whatever the nature
or extent of that title might be. The entire bundle of rights which were vested
in the original holder would pass on acquisition to the acquirer leaving
nothing in the former".
But in the State of West Bengal v. Subodh
Gopal Bose & others(2) the view taken in the judgment of the majority was
that clauses 1 and 2 of Article 31 were not mutually exclusive in scope and
content but should be read together and understood as dealing with the same
subject. Thus a wider meaning was given to acquisition, deprivation
contemplated in clause being no other than the acquisition or taking possession
of the property referred to in clause(2). In Dwarkadas Shrinivasa of Bombay v.
The Sholapur Spinning & Weaving Co. Ltd. & Others(3) this Court, While
confirming the above principle, held that the word "acquisition" had
quite a wide concept, meaning the procuring of property or taking of it
permanently or temporarily and it was not confined only to the acquisition of a
legal title, by the State in the property taken possession of. This was the
position relating to Art. 31 as it stood before the Constitution (4th
Amendment) Act, Clause 2A was inserted in 1955 with the object of superseding
the majority decision in Subodh Gopal's(2) case as also in Saghir Ahmed v. The
State of Uttar Pradesh(4) in which the earlier decisions were followed. It was
pointed out in Gultapalli Nageswdra Rao & other v. Andhra Pradesh State
Road Transport Corporation & Another(5) "The Constitution (Fourth
Amendment) Act, 1955 Amended clause (2) of Art. 31 and inserted clause 2A in
(1)  S. C. R. 869 At p. 902. (2)  S. C. R. 587.
(3)  S. C. R. 674. (4)  1 S. C.
(5)  Suppl. 1 S. C. R. 319.
252 that article. The amendments, in so far
as they are relevant to the present purpose, substitute in place of the words
'taken possession or acquired' the words ` compulsorily acquired or
requisitioned' and provide an explanation of the words 'acquired and
requisitioned' in clause (2A). The result is that unless the law depriving any
person of his property provides for the transfer of the ownership or right to
the possession of any property to the State, the law does not relate to
acquisition or requisition' of property and therefore the limitations placed
upon the legislature under cl. (2) will not apply to such law." It is
therefore essential that in order to constitute acquisition or requisitioning
there must be, transfer of the ownership or right to possession of any property
to the State or to a corporation owned or controlled by the State.
Article 12 provides that in Part III (in
which Article 31 appears) unless the context otherwise requires the State
"includes the Government and Parliament of India and the Government and
the legislature of each of the States and all local or other authorities within
the territory of India or under the control of the Government of India. The
effect of the Constitution (Ninth Amendment) Act 1960 by which part of the
Berubari Union No. 12 shall be ceded to Pakistan can by no stretch of reasoning
be regarded as a transfer of the ownership or right to possession of any
property of the respondents to the State within the meaning of Art. 12 of the
Constitution. The amendment of 1955 makes it clear that mere deprivation of
property unless it is acquisition or requisitioning within the meaning of
clause (2A) will not attract clause (2) and no obligation to pay compensation
will arise there under.
Cession indisputably involves transference of
sovereignty from one sovereign State to another. There is no transference of
ownership or right to possession in the properties of the inhabitants of the
territory ceded to the ceding State itself. The Constitution (Ninth Amendment)
Act having been enacted in accordance with the Advisory opinion of this court(1)
there can be no impediment in the way of ceding part of Berubari Union No. 12
pursuant to the IndoPakistan Treaty 1958. The view of the High Court that the
cession of the said territory involves transfer of the ownership and other
private property rights to Pakistan through the Union of India which was
outside clause(2A) of Article 31 and was covered by clause(2) of that Article
is to say the least wholly untenable and cannot be sustained.
In our judgment no question of acquisition
within Art. 31(2) is involved in the present case and even though a good deal
of hardship may result to the respondents owing to the change of sovereignty
they (1)  3 S. C. R. 250.
253 cannot claim compensation for the simple
reason that there has been no transfer of the ownership of their property to
the State namely the Union of India which would attract the applicability of
The appeal, therefore, succeeds and it is
In view of the nature of the points decided
there will be no order as to costs.
K.B.N. Appeal allowed.