Maganbhai Ishwarbhai Patel Vs. Union of
India & ANR  INSC 4 (9 January 1969)
09/01/1969 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1969 AIR 783 1969 SCR (3) 254 1970
SCC (3) 400
CITATOR INFO :
RF 1990 SC1692 (13)
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 awardsBoundary dispute, settlement of and cession of
territory difference between.
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
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 Constitution 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
been 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,  4 P.D. 129; Walker v. Baird  A.C. 491 and Attorney-General
for Canada v. Attorney-General for Ontario,  A.C. 326 it 347, referred
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),  3 S.C.R. 250 and Ram Kishore Sen v.
Union of India (The second Berubari 'case),  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 Re organisation
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,  4
P.D. 129, Walker v. Baird,  A.C. 491 and Attorney-General for Canada v.
AttorneyGeneral for Ontario,  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
demarcation 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 C302 F] In re : The Berubari Union and Exchange
of Enclaves (the first Berubari case),,  3 S.C.R. 250 and Ram Kishore Sen
V. Union of India, (the second Berubari case),,  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
[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]
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
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
R. H. Dhebar and S. P. Nayar, for the State
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 dominions
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 exchanged 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
(iii) Indian police may then, reoccupy the
post at Chhad Bet in strength no greater than that employed at the post on 31
(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 PakistanIndia 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 settlement 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
(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 Communiqué 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 ceasefire 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 Governments 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 Governments 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 being until
its findings have been implemented in full.
The cease-fire came into effect as provided
in Article 1 of the Agreement.
As a result of this agreement the Government
of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of
Yugoslavia, the Government of Pakistan nominated' Ambassador Nasrollah Entezam of
Iran and former President of the General Assembly of the United Nations. The
two Governments having failed to agree on the selection of the Chairman of the
Tribunal, the Secretary-General of the United Nations, under the power reserved
by sub-paragraph (iii) of Article 3 of the Agreement, nominated Judge Gunnar
Lagergren, now President of the Court of Appeal for Western Sweden. In the
course of the hearing a compromise on the procedure for the demarcations of the
boundary was settled.
Memorials, Counter-Memorials and Final
Memorials were submitted along with numerous Maps, and documents. The oral
hearings began on September 15, 1966 and continued with some breaks till July
14, 1967. During the hearing about 10,000 pages of minutes and Verbatim Records
were made and about 350 maps were exhibited.
At an early stage in the hearing Pakistan
raised the question that the dispute be decided ex aequo et bono which request
was opposed by India. The Tribunal did not find that the Agreement of June 30,
1965 authorised it 'clearly and beyond doubt to adjudicate ex aequo et bono'.
The parties did not confer this power by a Special Compromis even thereafter.
The case on the part of India was pro pounded
with the aid of map A which was a mosaic of Indian Maps B-44, B-37, B-19, 264
and B-20. Pakistan claimed the boundary as marked on Map B.
The award has delineated the boundary in Map
C. Maps A and B and C form part of the Award. In describing the matter in
dispute the Tribunal observed: India claimed that "the Tribunal determine
the alignment of the entire boundary between West Pakistan and Gujarat from the
point at which the blue dotted line meets the purple line in Indian Map B-44 in
the west to the North-Eastern Tri junction in the east as it appears in the
Indian Maps B-44, B-37, B-19 and B-20 where the correct alignment is shown by
appropriate boundary symbols." The Government of Pakistan claimed that
"The Tribunal determine that the border between India and Pakistan is that
which is marked with green-yellow, thick broken line in the Pakistan Claim Map
It is common ground that the Gujarat-West "Pakistan boundary stretches
from the, mouth of the Sir Creek in the west to a point on the Jodhpur boundary
in the east. The Parties agree that the Western Terminus of the boundary to be
determined by the Tribunal is the point at which the blue dotted line meets the
purple line as depicted in Indian Map B-44 and the Pakistan Resolution Map, and
that the Eastern Terminus of the same boundary is a point situated 825.8 metres
below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map-137."
"This agreement leaves out of the matters submitted to the Tribunal the
portion of the boundary along the blue dotted line, as depicted in Indian Map
B-44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek.
The blue dotted line is agreed by both Parties to form the boundary between
India and Pakistan. In view of the aforesaid agreement, the question concerning
the Sir Creek part of the boundary is left out of consideration." The
dispute thus remained with regard to the boundary outside these agreements. The
Tribunal described this dispute in the following words "From the Western
Terminus, the boundary claimed by India takes off to the north and that claimed
by 265 Pakistan to the south; and from the Eastern Terminus, the boundary
claimed by India takes off to the south-west while the boundry claimed by
Pakistan turns south-east.
Both parties agree that before Independence
the boundaries between the Province of Sind, on the one hand, and one or more
of the Indian States on the other hand, were conterminous.
Therefore, in the disputed region, apart from
India and Pakistan there is no other State that does or could have sovereignty.
There is between India and Pakistan a conterminous boundary today, whether or
not there was at all times a conterminous boundary between Sind and the Indian
Pakistan contends that, should the Tribunal
find that the Province of Sind and the Indian States were not fully
conterminous, then the area between Sind and these States would be an
"undefined area", falling outside the scope of the Indian
Independence Act, 1947. In such an event, the conterminous boundary between
India and Pakistan would have to be determined by the Tribunal on the basis of
rules and principles applicable in such circumstances.
Pakistan adds that the evidence produced by
it in this case is in support of its principal submission, although some of it
could also be used in support of its alternative submission.
Both parties agree that the Rann was not a
"tribal area" as defined in Section 311 of the Government of India
Each party states that the boundary claimed
by it is the traditional, well-established and well-recognised boundary."
Pakistan thus claimed in addition to the establishment of a median line roughly
along the 24th parallel, what it called the upper lands in dispute and the
northwestern part of it which it called 'the jutting triangle'. These included
Dhara Banni, Chhadbet, Pirol Valo Kun, Kanjarkot, Vighokot and Sarifbela and
these were said to be not part of the Rann. India on the other hand stated that
the Rann means the Rann lying to the east of the vertical line and to the south
of the horizontal line as depicted in Map A. Pakistan maintained that the Rann
lay to the east of what was once known as the Khori river and that the lands
were part of Sind and referred to the same as 'the delta lands'.
L7sup. CI/69-18 265 266 The above in brief is
the, outline of the dispute as presented to the Tribunal. Although the AWard of
the Tribunal it before us it was necessary to make this brief mention because
we are required t"o reach a decision whether this was a clear case of
cession of territory following the, award, which it is claimed makes it
incumbent for the executive authority in India to obtain the approval of
Parliament by suitable amendment of our Constitution, before effectuating the
The Tribunal was not unanimous in its
decision. Judge Ales Bebler accepted almost in its entirety the claim of India.
Ambassador Nosrollah Entezam upheld the
The Chairman then delivered his opinion. On
the propounding of his opinion Ambassador Entezam gave his opinion as follows
Opinion of Mr. Entezam "In an early stage I considered that Pakistani had
made out a clear title to the northern half of the am shown in the survey maps
as Rann. I have now had the advantage of reading the opinion of the learned
Chairman, and in the light of it I concur in and endorse the judgment of the
The Tribunal thereupon ruled thus:
" The alignment of the boundry described
in the opinion of the chairman and endorsed by Mr. Entezam has obtained the
required majority. It is therefore the boundary determined by the Tribunal.
The Chairman prefaced his conclusions by
observing "For the reasons now given, and with due regard to what is fair
and reasonable as to details I conclude of the great issue before me that the
boundary between India and Pakistan lies as follows. Reference is made here to
the Award Map (Map C). Because of the imprecise topographical features in the
region and the impossibility of exactly delimiting many acts of State
authority,, the boundary must sometimes be represented by approximate straight
lines." The Chairman then indicated the exact location of the boundary
determined by him which was also delineated by him on the Map C. The new
boundary begins at the northern tip of the Khori Creek and after going straight
up north reaches the mainland of Sind and then follows roughly the
configuration of the land till it comes south of Rahim ke bazar. It thus
follows Erskines Survey. Thereafter instead of following the mainland it dips
to the South East just South of Sadariajagot and then 267 goes up North West to
join the maintained and to follow the boundary symbols. In the triangle, so
formed is situated the Kanjarkot area which is the first limb of the disputed
territory brought to the fore before us. After following the line of the
mainland and the existing boundary symbols the new boundary again dips to the
'South East to a point a little north of the 24th parallel and runs parallel to
it thus embracing Dharabani and Chhadbet to Pakistan.
Thereafter it goes north to join the main
land of Sind again and follows the boundary symbols which it follows till it
reaches the Nagar Parkar area. This is a kind of a peninsula jutting to the
South. On the West and East sides of Nagar Parkar there are two narrow but deep
inlets. The new boundary instead of running along the banks of the inlets jumps
across the two inlets at their southern extremities, thus including them in
Pakistan. The inlets, therefore, are the fourth and fifth limbs of the disputed
territory of India which the petitioners claim has been lost to India by the
Award. The new boundary thence proceeds along the mainland till it reaches the
demarcated boundary at the Jodhpur and from where the boundary is not in
dispute just as the boundary from Sit Creek to Khori Creek has not been, in
In drawing up the border the Tribunal based
itself on much historical matter and old maps. In the opinions of Judge Ales
Bebler and the Chairman (Ambassador Entezam concurring with the Chairman) this
historical material has been differently interpreted but we are not concerned
The reference was also not decided as a
cartographic dispute It was settled by an ad hoc award No special reasons were
given by the Chairman why he included 350 sq.
miles in pakistan when he dipped the boundary
to the South into the Rann of Kutch except when he came to-consider the
question of, the two inlets on the two sets of Nagar Parkar.
In this connection he observed:
"The two deep inlets on either side of
Naga Parkar will constitute the territory of Pakistan. Al. ready in. 1855, the
Deputy Commissioner of Thar Parkar pointed out that if these inlets were to be
considered Kutch territory.
(a)glance at the map will show that Parkar
would be a peninsula almost entirely surrounded by Kutch territory. The Kutch
State could erect fortifications and establish Custom houses at places situated
many miles within the district for instance close to Verrawah, or on some of
the roads which, crossing inlets of the Rann, lead from one part of this
district to another. (Pak. Doc.
268 In my opinion it would be inequitable to
recognise these inlets as foreign territory.
it would be conducive to friction and
conflict. The paramount consideration of promoting peace and stability in this
region compels the recognition and confirmation that this territory, also be
regarded as such. The points, where the boundary will thus cut off the two
inlets are these :
At the westerns inlet, the boundary will
leave the boundary symbols indicated on Indian Map B-34 at the point marked
thereon as "26", more precisely where the cart track is indicated as
departing from the edge of the Rann in a southeasterly direction. This point is
indicated as Point "L" on Map C. on the other side of the inlet, the
point will be that where the camel track is indicated on Indian Map B-34 to
reach the edge of the Rann; that point is indicated as point "M" on
Between Points "L" and
"M", the boundary shall be a straight line.
The boundary will cross the eastern inlet at
its narrowest point in a straight line between Points 'N" and
"O" marked on Map C." In straightening the line to avoid a
jagged boundary the Chairman gave the following reason "The boundary
marked by symbols along the outer edges of the peninsula of Nagar Parkar and up
to the Eastern Terminus is a jagged one. As such it is unsuitable and
impracticable as an international boundary.
The boundary shall accordingly lie in conformity
with the depiction on Map C between the outer points on jutting-out tongues of
land from Point "M" and until the Eastern Terminus, marked as
"ET" on Map C.
At no point. between the two Terminii shall
the alignment of the boundary as above described be such as to include in India
territory not claimed by India, as defined by the depiction of India's claim
line on Map A.
It might be added that the boundary proposed
by me for the greater part of its length roughly coincides with the boundary
proposed by my learned colleague, Mr. Bebler." This in brief is the
decision of the Tribunal. We now proceed to the consideration of the 'Matters
There are seven parties before us seeking to
restrain the Government of India from making over the areas of Kanjarkot, 269
Dharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and
insist that the necessary change can only be effected by a constitutional
amendment of the territories of India as indicated in the Constitution. It may
be Pointed Out that none of the petitioners contends that the Award should be
rejected. This is as it should be, India was voluntarily a party to an
agreement pledging its honour to respect the Award. According to J. H. Rolston
(International Arbitrations from Athens to Locarno) pacific settlement of
international disputes through a binding award on the basis of an undertaking
voluntarily accepted is founded on the same principles as are to be found in
the concept of Arbitrations in Municipal Law. The history of such arbitrations
begins in modem times from the Jay Treaty between Great Britain and the United
States of America of November 19, 1794 to settle the boundary disputes after
Independence in 1776) through Mixed Commissions. The Commissions settled the
exact position of the Sainte Croix River and the decision was regarded by both
sides "as final and conclusive so that the same shall never thereafter be
called in question or made the subject of dispute or difference between
them." The rules of such arbitrations were settled by the Alabama
Arbitrations in 1871 and the basis of the rules is the maxim Pacta Sunt
Servanda. Indeed the Hague Convention of 1907 (Art. 37) contained the rule
"Recourse to arbitration implies an engagement to submit loyally to Awards."
There have been innumerable arbitrations between nations.
Several books contain Surveys of these
arbitrations and awards. Stuyt lists 407 between 1794 and 1938 and writers like
Moore, La Fontaine, Lapradelle, Darby etc. have made other compilations, the
most complete being by Moore.
Nantwi brings the list down to 1967 and also
lists separately the awards which were not complied with. An examination of
such awards only reveals that generally an award is not accepted when the terms
of submission are departed from or there are fatal omissions, contradictions or
obscurities or the arbitrators substantially exceed their jurisdiction. None of
these factors obtains here. Since the award has been accepted by our Government
it is binding.
The parties also do not want that it be
rejected. The only question raised in these matters is how it is to be
Before we deal with the problem we wish to
say something about the standing of the petitioners since it appears to us that
most of them have no direct interest to question the action of Government or to
raise any controversy regarding the implementation of the Award.
Before the hearing commenced we questioned
each petitioner as to the foundation of his claim. We discovered that ,most of
the petitioners had no real or apparent stake in the areas 270 now declared to
be Pakistan territory. These persons claim that they had and still have the
fundamental rights guaranteed to them by Art. 19 (1) (d) (e) and (f), that is
to say, the right to travel, to reside or settle down, or to acquire, and hold
property in these areas. None of them has so far made any move in this
direction but their apprehension is that they will be deprived of these rights
in the future.. This our judgment, is too tenuous a right to be noticed by the
court in administering the law and still less in enforcing fundamental rights.
When we communicated our view at an earlier hearing, some more petitioners came
forward Mr. Madhu Limaye puts forward the supporting plea that he had attempted
to penetrate this area to reconnoiter possibilities for settlement, but was
turned back. In this way he claims that he had attempted to exercise his
fundamental rights and they were infringed.
Another party claims to have had a lease of
grass lands some ten years ago in this area and he is now to be deprived of the
right to obtain a similar lease. Lastly one of the parties put forward the plea
that he lives in the adjoining territory and thus has interest in the
territories proposed to be ceded to Pakistan. These petitioners too have very
slender rights if at all. The only person who can claim deprivation of
fundamental rights is Mr. Madhu Limaye, although in his case also the
connection was temporary and almost ephemeral. However, We decided to hear him
and as we were to decide the question we heard supplementary arguments from the
others also to have as much assistance as possible. But we are not to be taken
as establishing a precedent for this Court which declines to issue a writ of
mandamus except at the instance of a party whose fundamental rights are
directly and substantially invaded or are in imminent danger of being so
invaded. From this point of view we would have been justified in dismissing all
petitions except perhaps that of Mr. Madhu Limaye. We may now proceed to the
consideration of the rival contentions.
The petitioners attempt to establish that
this territory is a part of India and has always been so from the establishment
of the two dominions, that India has exercised effective administrative control
over it and that. giving up, a claim to it involves a cession of Indian
territory which can only be effected by a constitutional amendment.
As to the details of the steps which, in the,
petitioners' view establish these facts, we shall come later. This in very
brief is the gist of the petitioners' case. The reply on behalf of the
government of India is equally brief. It is that no, cession of territory is
involved, since the boundary was always uncertain owing to the shifting nature
of the sea and sands and that the effective administrative control amounted to
no more than establishing a police outpost with a personnel of 171 persons for
watch and ward and that too after the exchange of 271 Diplomat Notes began and
that the dispute concerns the settlement of boundary which was uncertain. It is
thus contended that the true areas of Pakistan and India have now been
demarcated without cession of what may be called undisputed Indian territory.
According to the Government of India the Award itself is the operative treaty
and after demarcation of the boundary it will only be necessary to exchange
letters recognising the established border. The case lies within this narrow
Before we deal with the points in dispute and
them relied upon by the rival parties in support thereof we wish to say a few
words on the implementation of treaties in general and arbitration awards in
boundary disputes in particular. The practice of countries is different but the
diverse possible approaches to the question appear from an examination of the
practice obtaining in the United States, France, the United Kingdom and in
British India. An examination of these practices will enable us to see how the,
matter is to be viewed in this case and in context of our Constitution and the
existing rulings of court.
A treaty really concerns the political rather
than the judicial wing of the State. 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, possess the power to implement it. if there
is any deficiency in the constitutional system it has to be removed and the
State must equip itself with the, 'necessary power. in some jurisdictions the
treaty or the compromise read with the Award acquires fun effect automatically
in the, Municipal Law, the other body of Municipal Law notwithstanding. Such
treaties and awards are self-executing'. Legislation may nevertheless be passed
in aid of implementation but is usually not necessary.
In the United States of America a treaty
concluded with a foreign State by the, President of the United States alone,
without the consent of the Senate,, is not, according to their Constitution,
binding upon the Nation and the foreign power derives no rights under it (See
Mc Nair Law of Treaties p. 80 quoting from Crandall : Treaties, Making and
Enforcement chapter XIV). As Chief Justice Taft puts it : a treaty is the
supreme law and a treaty may repeal a statute and vice versa. It is only when
the terms of a treaty require that a law must be passed that it has to be so
passed : Foster v. Nielsen (2 Peters 253) See also Dickinson : Law of Nations
The position regarding the United States is
quite clear. In other nations different practices exist. In the French
Constitution of the 4th October, 1958 (Title VI) Article 52 enables the 272
President to negotiate and ratify treaties and he is informed of the
negotiation of any international agreement not subject to ratification. Article
53 names the treaties that require ratification by law. They, inter alia
involve the session, exchange or addition of territory. They take effect only
after having been ratified or approved. No cession, exchange or addition of
territory is valid without the consent of the populations concerned. However it
is not laid down how consent is to be obtained. Treaties or agreements
regularly ratified or approved have, from the time of publication, an authority
superior to that of laws, provided, in the case of each agreement or treaty,
that it is applied also by the other party (Article 55). If the Constitutional
Council consulted by the President of the Republic, the Prime Minister or the
President of either assembly, has declared that an international obligation
includes a clause contrary to the constitution, authorisation to ratify or
approve it may be accorded only after revision of the Constitution (Article
54). The Constitution thus makes provision for all contingencies.
Even though the Kings of France had power
expressly conferred by the Constitutional Charter of 1830, the French Jurists
denied the jurisdiction and power to the King to code territory.
The English practice, has like all other
British Institutions, :grown with time. Blackstone has the following remark :
"Whatever contracts he (the sovereign)
engages in, no other power in the kingdom can legally delay, resist or
annul." Kent in his Commentaries (Vol. 1 p. 175, 10th Edn.) says "the
power competent to bind the nation by treaty may alienate the public domain and
property by treaty." Forsyth in his Opinions gives the reason that if the
Nation has conferred upon its supreme executive without reserve the right of
making treaties, the alienation is valid because it is then made by the reputed
will of the Nation. England, however,, soon began to make a distinction between
territory ceded as a free gift in time of peace without a treaty and that ceded
as a result of a war. Forsyth asked the question whether the Crown had the
,power to alienate British territory by treaty, not following the dose of a war
as for instance, by a commercial treaty and answered that the proposition
seemed questionable. He observed:
"I should doubt very much whether the
Crown, without the authority of Parliament, would have the legal power to cede
by treaty the Channel Islands to France, there having been no war, and the
cession not being made as part of the adjustment of a quarrel between the two
countries." 273 Without a treaty the power to cede territory in time of
peace was always denied. Forsyth cites Grotius (de jure Belli et Pacis Vol. 11
c. 6. ss. 3-8) Puffendorf Vol. viii C. 12, Vattel Vol. 1 C. 20 s. 224, c. 21 s.
260, Livy Vol. IV c.. 2 s. 1 1 and Phillimore Part III c. 14 ss. 261, 262.
At the, time of the cession of East Florida
to Spain Lord Loughborough maintained that the Crown possessed no prerogative
to cede British Territory to a foreign State without authority of Parliament
but Lord Thurlow (Lord Chancellor) said that this was based on 'the
lucubrations and fancies' of foreign writers which he rejected. However Britain
was then at war with Spain and the cession was under a treaty of peace. In 1863
the House of Commons debated the transfer of Ionian Islands. Lord Palmerston. observed
"But with regard to cases of territory acquired by conquest during war,
and not ceded by treaty, and which are not therefore British freehold, and all
possessions that have been ceded by treaty and held as possessions of British
Crown, there is no question that the Crown may make a treaty alienating such
possession without the consent of Parliament." Lord Palmerston cited the
examples of Senegal, Minorce, Florida and Isles of Banca. (See Hansard Part:
CLXIX p. 230-231). These were however
cessions made by treaties of peace at the end of wars.
Lord Mc Nair gives the settled law of modem
times. According to him in the United Kingdom the concurrence of Parliament
must always be obtained except in a very small number of cases. He opines that
if the courts are required to assist in the implementation, a law must
obviously be found for courts act only in accordance with law. If a law is
obligatory obviously Parliament must have a say because no law can be passed
except by Parliament. However, even if a law be required, and yet the Crown
enters into a treaty, the courts take the act as final unless a law stands in
the way. In other words unless there be a law conflicting with the treaty, the
treaty must stand. In this connection it is profitable to read what Lord
Phillimore (then Sir Robert Phillimore) said in the Parliament Belge case(1).
That case was reversed on appeal in 5 P.D. 197 but on another point.
See also Walker v. Baird(2) .As was observed
by Lord Atkin in Attorney General for Canada v. Attorney General for Ontario(3)
the position may be summed up thus : there is a distinction between (1) the
formation and(2) the performance of the obligation. The first is an executive
act the second a legal act if a law is required.
(1) 4 P.D. 129. (3)  A.C. 326 at 347.
(2)  A.C. 491.
274 The performance then has no force apart
from a law that is to say unless Parliament assents to it and Parliament then
accords its approval to the, first executive act. The treaties created by
executive action bind them, contracting parties and, therefore, means must be
found for their implementation within the law. This is illustrated by a few
examples. The Executive authority in the State cannot acquire new rights
against the citizens by making treaties with foreign powers. Therefore whenever
peace treaties involved municipal execution many statutes had to be passed.
Again new offences cannot be created by the, more fact of conventions on
entered into with other powers.
Both principles obtain in India. The Indian
statute book contains numerous examples of conventions which have led to the
passing of Municipal Laws. The Civil Court Manual devotes many pages to such
statutes, too numerous to be mentioned here and the penal law of India also
affords examples One such is the law against obscenity in India which was the
direct result of 4 convention. In the United Kingdom there is almost a binding
convention that cession of British territory requires approval of Parliament in
the form of a statute but it must clearly have been the freehold of Britain.
But even here Parliamentary sanction is not
required for cession or abandonment of territory acquired previously by
conquest or cession or otherwise wrongly in British possession. The cases of
abandonment by the Crown of sovereignty over the various mandated territories
are in point. Many of them were given up without an Act of Parliament. The
protocol respecting the boundary between Tanganiyika territory and the Belgian
mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small
territory was never enacted as a law. In 1925 it was ruled that cession of.
territory which never formed part of a self governing dominion was a royal
prerogative although it was desirable that approval of Parliament be obtained.
A giving up of doubtful claims to territory is not considered to be of the same
standing as a cession of territory known to be that of the Crown. The tendency
however is to have parliamentary sanction when British territory is ceded.
This is provided in the very treaty itself
and it is made subject to Parliament's ;approval. The present practice of Crown
is to obtain either prior sanction of Parliament or to seek ratification after
it. This is done by laying the treaty on the, table of both Houses for 21 days,
after which time it is treated as ratified. Although the practice since 1924 is
to submit treaties to Parliament by laying them on the table of the two Houses
(known as the Penson by rule), there have been in the past numerous instances
of treaties implemented by the Crown without reference to Parliament.
These exceptions were connected with
circumstances of convenience and public policy that is to say to avert a war,
for consideration of territory or for rectification of boundaries. A few
examples of such action in time of peace may be given. In 1824 in treaty with
Netherlands, Great Britain ceded Sumatra and the settlement of Bencollen. In
1859-60 the Bay Islands were transferred to Honduras. In 1867 in treaty with
Netherlands an exchange of territory took place.
The Orange River Territory was transferred by
an order in Council. In 1697 by the Treaty of Reyswick Hudson Bay territory was
given back to the French. In 1813 by the Treaties of Stockholm the Island of
Guadelope was ceded to Spain. A cession of Mosquito Shore was made to
All those were in time of peace and without
Any reference to Parliament Hertslett's Treaties.
In British India section 113 of the Indian
Evidence Act of 1872 created a presumption in favour of such transfer which on
the issue of a notification was to be held by courts to be valid. In 1872
Scidia was given the pergannah of Broach.
In 1803 Pudokottah State was ceded the
Districts of Kullanelly in Tanjore. In 1806 Sambalpur was given to the Mahara a
of Nagpur and in 1871 Scidia was given certain villages in Jhansi. [See
Aitchoson's trees Vol. 3 (p. 331), Vol. 4 (p. 214) and (99)]. All these were
without intervention of Parliament.
It will thus appear that there is no settled
practice. The least that can be said is that cession in time of war in the
United Kingdom can always be made by the Crown but in time of peace it can only
be made by Parliamentary sanction whether obtained directly or under the Ponson
by rule. In British India parliamentary sanction was not necessary. In Damodar
Gordhan v. Deoran Kanji(1) it was laid down that "the general and abstract
doctrine laid down by the High Court at Bombay that it is beyond the power of
the British Crown without the consent of the Imperial Parliament to make a
cession of territory within the jurisdiction of any of the British Courts in
India, in time of peace, to a foreign power, is erroneous." The question
is one of domestic as well as International Law and we have been at pains to
set down the practice of some countries and that obtaining in British India
before dealing with this problem in the light of our Constitution and the facts
obtaining here. It will appear from the other analysis that the United States
of America and the French Constitutions have a clear guidance on the subject.
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 cession 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 (1)  1
Appeal cases, 332.
276 changes where boundaries have to be
ascertained and adjusted. In British India advantage was taken of Section 113
of the Evidence Act in cases of cessions to Native States, Prince or Ruler.
That section is now obsolete and has been omitted in Burma and Ceylong but is
still borne on our statute, although no longer required. We may now pass on to
the Indian Constitution and the facts of this case to see how it views this
The Constitution did not include any clear
direction about treaties such as is to be found in the United States of America
and the French Constitutions. Article I of the Constitution defined the
territory of India. It provides that India shall be a Union of States. In the
Constitution as originally enacted First Schedule classified States as A, B, C
and D. After the Seventh Amendment in 1956 it is now provided that the States
and the territories thereof shall be as specified in the First Schedule. Clause
(3) ,of the First Article was also amended by the Seventh Amendment but as the
amendment is not material we may read here that clause as it is today. It reads
"(3) The territory of India shall
comprise-(a) the territories of the States;
(b) the Union territories specified in the
First Schedule; and (c) such other territories as may be acquired.' Article 3
enables Parliament by law to alter the boundaries of the existing States and it
includes the power (b) to increase the area, of any State (c) diminish the area
of any State or to alter the name of any State. Then there are items Nos. 14
and 15 in the Seventh Schedule which provide as follows "14. Entering into
treaties and agreements with foreign countries and implementing of treaties,
agreements and conventions with foreign countries.
15. War and peace." These entries enable
laws to be enacted on these topics.
They are to be read with Article 253 which occurs
in Part XI (Relations between the Union and the States) Chapter 1 (Legislative
Relations) and is headed Distribution of Legislative Powers, it provides.
"253. Notwithstanding anything in the
foregoing provisions of this Chapter, 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 277 decision
made at any international conference, association or other body." In point
of fact it adds nothing to the legislative entries 14 and 15 above quoted but
confers exclusive power of lawmaking upon". Parliament. As the marginal
note correctly represents the idea underlying the Article, it may be,
read--Legislation for giving effect to International agreements-and the article
only says that Parliament is the authority to make such laws. In addition to
these provisions we must also take into account Article 73(1) which lays down
the Executive power of the Union. It reads "73(1) Subject to the
provisions of this Constitution, the executive power of the Union shall extend(a)
to the matters with respect to which Parliament has power to make laws; and (b)
to the exercise of such rights, authority and jurisdiction as are exercisable
by the Government of India by virtue of any treaty or agreement Provided that
the executive power referred to in sub clause (a) shall not, save as expressly
provided in this Constitution or in any law made by Parliament, extend in any
State to matters with respect to which the Legislature of the State has also
power to make laws." The question is if a law and or a constitutional
amendments is necessary for implementing the Award.
Before we deal with the facts of the case
before us and the.
arguments for and against executive act ion
we may consider here a few cases of this Court in which a problem of cession of
Indian, Territory had previously arisen because both side seek to apply those
cases to the facts here.
It is convenient to view these cases in the
order in which they were decided In Midnapore Zamindary Co. Ltd. v.
Province of Bengal and others(1), this
question was not directly in issue. There were observations which are pertinent
and must be borne in mind.
It was observed that disputes as to boundaries
between two independent States cannot be the subject of inquiry of municipal
courts exercising jurisdiction in either State.
The Federal Court relied upon the statement
of the law by Oppenheim. (International Law, 7th Edn., Vol. 1, p. 408) that
"state territory is an object of the Law of Nations, because the latter
recognises the supreme authority of every State within its territory". The
Federal Court quoted with approval the dictum of Farwell, J. in Foster v. Globe
Venture Syndicate Ltd. (2) which reads:
(1)  P. R. 309. (2) L.R.  1 Ch.
278 "Sound Policy appears to, me to
require that I should act in unison with the Government on such a point as
that. Assuming that the Foreign Office have already satisfied themselves that
the territory in question is within the dominion of Morocco, and have applied.
to the Sultan of Morocco for redress in any given matter, it would surely be
improver that 1, sitting here as a Judge of the High Court, should, in the face
of that art of Her Majesty, hold as a matter of fact that the territory in
question was not within the dominion of the Sultan of Morocco. I should be
contravening the act of Her Majesty acting as a Sovereign in a matter which is
within the cognizance of Her Majesty's Foreign Office." This statement of
the law had the full approval of Viscount Finlay in Duff Development Co. v.
Kalintan Government(1) where consultation between Court and Government was
advocated. This ,case does not help us to, solve the problem but it shows that
Municipal Courts should be slow to interfere.
A similar question like the present arose In
re : The Berubari Union and Exchange of Enclaves (2) on a reference by the
President of India to this Court of certain questions concerning the Berubari
Union and the exchange of certain enclaves. As a result of the Radcliffe Award'
dated August 12, 1947 Berubari Union was includedin West Bengal and was treated
as such. Certain boundary disputes, having arisen from interpretation of the
Radcliffe award, the two Dominions referred the dispute to another Tribunal
presided, over by Lord Justice Algot Bagge for decision. The BaggeTribunal gave
its award on 26 January, 1950. Subsequently the question of Berubari Union was
raised by Pakisthan in 1952 and on September 10' 1958 the Prime Ministers of
India and Pakistan entered into an agreement between East and West Bengal,
which involved transfer of Berubari Union to Pakistan,. Simultaneously an
agreement to exchange certain enclaves took place also. This is known as the
IndoPakistan Agreement. Section 290 of the Government of India Act 1935 had
provided, that His Majesty could by Order in Council increase or diminish the
area of any Province or alter the boundary of any Province and the
Extra-Provincial Jurisdiction Act of 1947 gave the necessary power in that
behalf. The question arose whether the inauguration of the Constitution had led
to any change. Three questions were referred to this Court by the President.
They were (1)Is any legislative action necessary for the implementation of the
Agreement relating to Berubari Union ? (1)  A.C. 797.
(2)  3 S.C.R. 250.
279 (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 to 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 Exchange of Enclaves or is an amendment
of the Constitution in accordance with article 368 of the Constitution
necessary for the purpose, in addition or in the alternative." This Court
gave the following answers Q? 1. Yes.
Q? 2. (a) A law of Parliament relatable to
Art. 3 (it the Constitution would be incompetent;
(b) A law of Parliament relatable to Art.
368 of the Constitution is competent and
necessary, (c)A law of Parliament relatable to both Art. 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 finds
under Art. 369 and then follow it up with a law relatable to the amended Art. 3
to implement the Q. 3. Same as answers (a), (b), and (c) to Question 2."
The contention on behalf of the Union was that the IndoPakistan tan Agreement
regarding Berubari Union only ascertained and delineated the exact boundary and
did not involve alteration of territorial limits of India or alienation or
cession of Indian territory. The exchange of enclaves was also described as a
part of the general and broader agreement about Berubari Union and incidental
According to the Union Government the Indo
Pakistan Agreement could be implemented by executive action alone without
Parliamentary legislation whether with or without a constitutional amendment.
Reliance was placed on the observations of Mukherjee, C.J. in, Rai Sahib Ram
Jawaya Kapur v. The State of Punjab (1) where dealing with the limits within
which the Executive Government can function, the learned Chief Justice said
"that the executive function comprised both the determination of the
policy as well as the carrying it into execution. This evidently includes the
initiation of legislation (1)  1 S.C.R. 225. 7 280, maintenance of order,
the promotion of social and economic welfare, the, direction of foreign Policy,
in fact the carrying on or supervision of the general administration of the
State." The Court posed the question whether the Indo-Pakistan Agreement
had purported to settle, a boundary dispute or to divide the disputed territory
half and half. The Court found the latter as there was no attempt in the said
Agreement to read or interpret the Awards previously given in that dispute.
This Court rejected the contention that it was a pure ascertainment of boundary
between the two Countries. On the other hand the Indo-Pakistan Agreement ceded
territory of India to Pakistan. This conclusion was reached in respect of the
Berubari Union as well as the enclaves. Since the Berubari Union was treated
after the two Awards as part of India its cession would have altered the
content of Entry 13 of the First Schedule to the Constitution and an amendment
was held necessary. Once the argument that this was a case of marking a boundary
on the surface of the earth was rejected this Court considered the steps
necessary to make cession of Indian territory. As a result the 9th Amendment to
the Constitution was enacted from December 28, 1960.
The matter came again in another form before
this Court in Ramkishore Sen and Others v. Union of India(1) which is known
popularly as the Berubari II case. It was a writ petition filed in the Calcutta
High Court and the appeal was brought to this Court. It was filed by six
residents of the District of Jalpaiguri. The complaint was that the village of
Chilhati (among others) was being transferred to Pakistan as a result of the
Agreement between India and Pakistan and the action was illegal. The main point
argued in the petition was that Chilhati was not covered either by the
Indo-Pakistan Agreement or the 9th Amendment. According to those petitioners it
was not competent to transfer Chilhati without first amending the Constitution.
The case before the High Court and in this Court was that a part of Chilhati
village situated in Debiganj Police Station was a part of Chilhati in
Jalpaiguri District. This' Court observed :
"There is no doubt that if a small
portion of land admeasuring about 512 acres which is being transferred to
Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj
Thana, there can be no valid objection to the proposed transfer. It is common
ground that the village of Chilahati in the Debiganj Thana has been allotted to
Pakistan; and it appears that through inadvertence, a part of it was not
delivered to Pakistan on the occasion of the partition which followed (1)
 1 S.C.R. 430.
281 the Radcliffe Award. It is not surprising
that in dividing territories under the Radcliffe Award, such a mistake should
have occurred; but it is plain that what the respondents now propose to do is
to transfer to Pakistan the area in question which really belongs to her."
It was then contended that even though that part ought to have been originally
transferred to Pakistan under the Radcliffe Award, it having become part of
India could not be ceded without the procedure laid down in Berubari I case.
As this portion was being administered as
part of West Bengal under Entry 13 in the First Schedule it was part of the
territory which immediately before the commencement of the Constitution was
West Bengal. This Court observed :
"It is true that since this part of
Chilahati was not transferred to Pakistan at the proper time, it has been
regarded as part of West Bengal and administered as such. But the question is :
does this fact satisfy the requirement of Entry 13 on which the argument is,
based? In other words, what is the meaning of the clause "the territories
which were being administered as if they formed part of that Province'; what do
the words "as if" indicate in the context ?" Explaining the
phrase 'as if they formed part of that Province' this Court looked into the
history of this Province. Clauses (a) and (b) of section 290-A of the
Government of India Act 1935" may be reproduced "Administration of
certain Acceding States as a Chief Commissioner's Province or as part of a
Governor's or Chief Commissioner's Province :(1)Where full exclusive authority,
jurisdiction and powers for and in relation to governance of any Indian, State
or any group of such States are for the time being exercisable by the Dominion
Government, the Governor-General may by order direct-(2)that the State or the
group of States shall be administered in all respects as if the State or the
group of States were a Chief Commissioner's Province; or (3)that the State or
the group of States shall be administered in all respects as if the State or
the group of States formed part of a Governor's or a Chief 'Commissioner's
Province specified in the Order." The Court concluded thus :
"In view of this constitutional
background, the words "as if" have a special significance.
They refer to territories which originally
did not belong to West 7Sup.CI/69-19 7 Sup .CI/69-19 282 Bengal but which
became a part of West Bengal by reason of merger agreements. Therefore, it
would be impossible to hold that a portion of Chilahati is a territory which
was administered as if it was a part of West Bengal. Chilahati may have been
administered as a part of West Bengal; but the said administration cannot
attract the provisions of Entry 13 in the First Schedule, because it was not
administered as if it was a part of West Bengal within the meaning of that
The physical fact of administering the said
area was not referable to any merger at all it was referable to the accidental
circumstance that the said area had not been transferred to Pakistan as it
should have been. In other words, the clause "as if" is not intended
to take in cases of territories which are administered with the full knowledge
that they do not belong to West Bengal and had to be transferred in due course
to Pakistan. The said clause is clearly and specifically intended to refer to
territories which merged with the adjoining States at the crucial time, and so,
it cannot include a part of Chilahati that *as administered by West Bengal
under the circumstance to which we have just referred.
That is why we think Mr. Mukerjee is not
right in contending that by reason of the fact that about 512 acres of
Chilahati were not transferred to Pakistan and continued to be admin istered by
the West Bengal Government, that area 'became a part of West Bengal within the
meaning of :Entry 13 Schedule 1. The West Bengal Government ,knew all the time
that it was an area which belonged to Pakistan and which had to be transferred
to it. That is, in fact, what the respondents are seeking to do; and so, it
would be idle to contend that by virtue of the accidental fact that this area
was administered by West Bengal, it has constitutionally and validly become a
part of West Bengal itself. That being so,there can be no ,question about the
constitutional validity of the proposed transfer of this area to Pakistan. What
the respondents are seeking to do is to give to Pakistan what belongs under the
Radcliffe Award." These two cases did not really decide the point we are
called upon to decide. The first Berubari Case dealt with transfer of territory
which was de facto and de jure Indian territory and there-fore as the extent of
Indian territories as defined in Art. I read with the 1st Schedule was reduced
a constitutional amendment was held necessary. The second case concerned
territory which ,was de facto under the administration by India but being de
jure that of Pakistan, transfer of that territory which was not a part 283 of
Indian territory was held not to require a constitutional amendment. Neither
case dealt with a boundary dispute although in the first case the case from
Australia was distinguished on the ground that that case concerned the demarcation
of boundaries pure and simple. However it was not said that for adjustment of
boundaries a constitutional amendment was not required. Neither case adverted
to the practice of Nations particularly Britain, nor attempted to interpret the
relation of Articles 1,253 and 73 of the Constitution read with Items 14 and 15
of List I of Schedule
7. The only thing that can be said is that
this Court leaned in favour of a constitutional amendment in all cases where
admitted territory of India was being ceded but not where the cession was of
territory of a foreign power but de facto in possession of India. On which side
must a border dispute fall is the question for our decision. The petitioners
claim that this will fall in the dictum of the first Berubari Case. The Union
Government claims that it is analogous to the case of Chilahati in the second
The question is one of authority. Who in the
State can be said to possess plenum dominion depends upon the Constitution and
the nature of the adjustment. As to the necessity of it, the 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.
Therefore all argument that the action of
Government to go to arbitration was not proper must cease. Unlike the United
States of America where the Constitution is defined in express terms, we-in our
Country can only go by inferences from our Constitution, the circumstances and
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. Must a boundary dispute and its settlement
by an arbitral tribunal be put on the same footing. An agreement to refer the
dispute regarding boundary involves the ascertainment and representation on the
surface of the earth a boundary line dividing two 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. A settlement of
a boundary dispute cannot, therefore, be held to be a cession of territory. It
contemplates a line of demarcation on the surface of the earth. It only seeks
to reproduce a line, a statutable boundary, and it is so fixed. The case is one
in which each contending state ex facie is uncertain of its own rights and
therefore consents to the appointment of an I arbitral machinery. Such a case
is plainly distinguishable from a case of cession of territory known to be home
territory. The argument that if power to settle boundaries be conceded to the
Executive, it might cede some vital part of India is to take an extreme view of
The same may even be said of Parliament
itself but it is hardly to be imagined 28 4 that such gross abuse of power is
ever likely. 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.
The argument on behalf of the petitioners is
intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two
inlets on either side of Nagar Parkar are Indian territory. From this it
follows, that a constitutional amendment as was laid down in the first Berubari
case is a condition precedent for the implementation of the Award.
The argument, therefore, follows closely the
reasoning in that case. It is contended that Article 1 read with the First
Schedule to the Constitution made Kutch into a part C State and under the
second paragraph of Part C itself its, territory comprised all territories
which by virtue of an order made under section 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's Province of the same name.
Wehave shown that the meaning of the phrase 'as if they were a Chief
Commissioner's Province of the same name' must be understood as was, laid down
in the second Berubari case. Learned counsel attempted to challenge that decision
but we consider ourselves bound by that decision. The petitioners must
establish that this area was a part of Kutch.
The petitioners, therefore, trace the history
Kutch is described in the White Paper on
Indian States as follows :
" 1 18. Another important State which
was taken over under Central administration was Kutch. This State has an area
of 17,249 Sq.
miles of which 8,461 miles is inhabited by a
population of a little over half a million.
The remaining area is occupied by what is known
as the Rann of Kutch which is covered by water during most part of the year. In
view of the geographical situation of the State and the potentialities of this
area, the development of which will require a considerable amount of money as
well as technical assistance, which neither the State by itself nor the State
of Saurashtra with which it was possible to integrate the State could provide,
it was decided that the best solution for this State would be to treat it as a
Centrally administered unit. An Agreement (Appendix XXIX) was accordingly
signed by the Ruler on 4th May, 1948 and the administration was taken over by a
Chief Commissioner on behalf of the Dominion Government on 1st June, 1949.285
This only gives the area but not the boundaries. The Kutch Merger agreement is
like any other merger agreement and was executed by the Maharao of Kutch on May
4, 1948. It gives no clue to the boundaries and also leaves the matters at
large. Immediately after Kutch was taken over by Chief Commissioner on June 1,
1949. On July, 29, 1949 the States Merger (Chief Commissioner's Provinces)
Order, 1949 was passed. It provided inter alia :
"2 (1) (c) the parts of States specified
in the Second Schedule to this Order shall be administered in all respects as
if they were a Chief Commissioner's Province, and shall be known as the Chief
Commissioner's Province of 'Kutch." The parts of States comprising Kutch
were given as follows "(i) The State of Kutch, excluding the area known as
Kutchigar h situate in Okhamandal.
(ii)The part of the United State of
Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the
seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and
Vasatava." Here again the boundaries are not mentioned.
All that we know of Kutch from these
documents is that it had an area of 17,249 Sq. miles of which 8,788 Sq. miles
were inhabited. Obviously this is most inconclusive from our point of view
since the White Paper is completely silent about boundaries.
The later history of Kutch is also not
helpful. On November 1, 1956 Kutch became a part of Bombay State. The States Reorganisation
Act referred to 'the existing State of Kutch' which did not advance matters any
nearer certainly than before. On May 1, 1960 the Bombay Reorganisation Act made
the area known as Kutch a part of the State of Gujarat State. Therefore none of
these documents is of any help in determining boundaries or that the disputed
areas were definitely a part of India.
There is also no evidence of administration
in Dhara Banni and Chhadbet. No revenue administration, establishment of
Courts, offices, schools etc. is proved. The Chairman found some evidence of
administrative control of Sind which contradicted the Indian case. The evidence
of leases was held to be contradicted by other evidence. The 1957 elections
show that a polling station was located at Chhadbet but the voters were the
personnel of the Watch and Ward force. Indeed the census of India (1961) shows
the same 171 persons who belonged to the Watch and Ward personnel. Kanjarkot
had almost no evidence in its favour and Mr. Madhu Limaye frankly admitted this
fact., The other petitioners gave. no evidence about it.
7Sup.Cl/69-20 286 No doubt, Pandit Jawaharlal
Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted
that the area belonged to India but that was only a statement and cannot be
held to be of an evidentiary character. We were bound to make such a statement
if we were at all to lay claim to it.
After all the other side was making a similar
claim and even a short skirmish also; took place. This cannot be treated as
In support of the case the petitioners took
us still further back into history. The definition of boundaries of Sind in
1935 by the Surveyor General was in general terms. It did not show whether
Kanjarkot, Dhara Banni and Chhadbet were excluded from Sind altogether. 'Me
Index Map prepared at the time was tot annexed to the order in Council. This
index map was relied upon by Ambassador Ales Bebler who gave opinion for us but
was not accepted by the Chairman and Ambassador Nasrollah Entezam. This was
probably because the Mosaic Map which is map A on which India rested the claim
did not show a continuous boundary along the entire length.
The statistical abstracts of India and
Pakistan which were sought to supplement the Map before us only give areas and
not boundaries and are, therefore, inconclusive.
The claim of Kutch State in 1914 when it
attempted to enlarge the Rann of Kutch at the cost of Sind was not successful.
A compromise was the foundation of 'a friendly understanding' and not the
settlement of a boundary. The Macdonald line that was then determined
represents the uncontested portion of the boundary. It was then attempted to
get a confirmation of the 'Kutch-Sind boundary but no boundary was settled. It
appears that the Rann itself was treated as excluded from Kutch. Indeed the
Government of Bombay continued to so regard it.
The fight before the Tribunal, therefore,,
became a cartographic tussle. Over 350 maps were exhibited by the parties and
many of these maps conflicted. Maps have been used in such cases but the source
of information on which the map is based is always doubtful and maps are
contradictory. One cannot go by one set only. In this view of the matter our
reliance on Maps B32, 34,35, 36 and 37 became ineffective. The disputed area
was about 3,500 Sq.
miles. Out of this about 350 sq. miles were
included in Pakistan.
We are not sitting in appeal over the Award
of the Tribunal.
Our interpretation of the Maps and facts of
history is really not called for. All that we can determine is whether there is
concrete and solid evidence to establish that these areas belonged to India. If
we could reach this conclusion there may be something to be said applying the
first Berubari case. Otherwise we must hold that there was a disputed boundary
and this was the occasion for marking out the final boundary on the surface of
the earth. in 287 our opinion this is what was done. We cannot go entirely by what
of the India pressed before the Tribunal. That is only one art matter, The
conditions existing prior to the Award were:
(a) that there was a break of hostilities;
(b) that then there was a cease-fire because
the dispute was to be decided by arbitration, (c) that both sides put forward
their claims, (d) that there was no clear evidence of demarcation of a boundary
acceptable to the parties now or in the past, (e) that the claim Map of India
did not show a continuous boundary along all the border, (f) that the area is
in different state at different seasons in the year, for part of.
the year it is water and for the remaining
part it is land. While it is the former it may be regarded as a part of the
Rann and while it is land it may well be regarded as part of Sind.
Viewed from this angle the contention in this
case comes to this : Does India cede undisputed Indian territory or is it the
settlement of a disputed boundary? With regard to Kanjarkot which is to the
south of Rahim ka Bazar no case was made out at all except assertions that it
is Indian territory in which at least Mr. Madhu Limaye (who argued the case
very fully and with considerable ability) did not join.
With regard to Mora Banni and Chhadbet it is
'clear that Map A (the claim map of India) does not show the border from
Manjeet where the boundary determined by the Tribunal leaves the mainland to a
point just west of the, point where the boundary determined by the Tribunal
again joins the mainland. To the south of this missing boundary lie Dhara Banni
and Chhadbet. It is, therefore, clear that at least in this part, India was not
certain of the boundary. No doubt some other maps show a continuous boundary
even there but other negative it. In other words the, exact location, of the
boundary was an open question. Dhara Banni and Chadbett are contiguous with the
mainland in some seasons although they are, inundated at times and become
indistinguishable from the Rann. In these circumstances the location of the
boundary at the southern fringe of DharaBanni and Chhadbet was no more than
fixing a trim boundary, according to the Tribunal. It was well within the terms
of reference and the decision being a true marking put of a disputed boundary
does not amount to cession of these three areas so as to attract a
As regards the two inlets, their area is said
to be less than 25 sq. miles. They are extremely narrow at their,southern
extremities and really represent indentations in land. At the narrow 288 points
roads run 1 across them and they are Pakistan's roads. Treating the inlets as
'inland waters, the Tribunal determined the boundary in such a way as to give
them to Pakistan. The reasons given by the Tribunal-have been reproduced above
by us. We cannot say that this will mean a cession of Indian territory. There,
was a genuine dispute,regarding the title to these inlets whatever India may
have thought about them. The decision of the Tribunal is a decision on a
disputed boundary and does not attract a constitutional amendment.
The only evidence was this area (which is otherwise
uninhabited) was in parts occupied by an Indian security force. The existence
of these 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 always a matter
As Judge Huber puts it in the Island of
Palmas case "manifestations of territorial sovereignty assume, it is true,
different forms, according to time and space. 'Although continuous in
principle,. sovereignty cannot be exercised in fact at every moment on every
point of a. territory. The intermittence and discontinuity compatible with the
maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved...........
(Award dated April 4, 1928 : 2 INT.ARB.
AWARDS 867) Garrisoning of an area (a point noted in the International Court of
Justice in 1953 in, the Minquiers and Ecrehos case,
1. C.J. Reports page 78) may be one kind of
evidence. But this applied 'to both sides. Unless they displayed real existence
of sovereignty over the area, none could be said to be in occupation de jure.
Hance the propounding of so many maps and documents. If we were sitting in
appeal on the award, of the Tribunal we might have formed a different opinion
of the material but we are not. The fact remains that India undertook to be
bound by the award pledging, die national honour and we must implement the
award. The only question is as to the steps to be taken.
On the whole, therefore, we are of opinion
that this reference began in a boundary dispute after open hostilities and was
decided as such. In which case it cannot be said that there will be a cession
of Indian territory and the rule earlier laid down by us applies` if no' constitutional
amendment is required the. power of the Executive which extends to matters with
respect to which 289 Parliament has power to make laws, can be exercised to
correct boundaries now that they have been settled, The decision to implement
the Award by exchange of letters, treating the Award as an operative treaty
after the boundary has been marked in this area, is within the competence of
the Executive wing of Government and no constitutional amendment is necessary.
The petitions and the appeals fail and will
be dismissed but there will be no order about costs.
Shah, J. I agree with the learned Chief
The controversy raised in this group of writ
petitions and appeals lies within a narrow compass whether the award, dated
February 19, 1968 of the Indo-Pakistan Western Boundary. Case Tribunal may be
implemented by a constitutional amendment and not otherwise. The claimants-I
use that expression to refer compendiously to the appellants and the
petitioners-urge that the award may be implemented only by an amendment
modifying the relevant provisions in Schedule 1 to the Constitution, because in
giving effect to the award of the Tribunal, cession of Indian territory is
involved, and. the executive is incompetent to cede Indian territory without
the authority of a constitutional amendment. The Union of India contends that
the Award merely fixes or demarcates the boundary between the State of Gujarat
in India and West Pakistan regarding which there were disputes and much
friction, and by the Award no cession of Indian territory is contemplated, and
for implementing it amendment of the Constitution is not needed.
The Great Rann of Kutch lies between the
mainland of Sind (which is now part of Pakistan) and the mainland of Kutcha
district of the State of Gujarat. It has a peculiar surface : it is marshy land
: for about four months in the year large parts of the Rann are covered with
the waters of the Arabian Sea rushing through the Khori Creek. It is however
not fit for navigation. During the rest of the year it is muddy or dry land,
but not dry enough for farming. From the very nature of the terrain, the
boundaries of the Rann are shifting, its extent depending upon the violence of
the natural elements in different years. The northern boundary of the Rann has,
on account of its inhospitable terrain and nomadic population on the fringe
with no prospect of cultivation, remained ill-defined. Between 1816 and 1819
the Indian State of Kutch passed under the domination of the East India Company
and the integrity of its territory was guaranteed by the East India Company by
the treaty of 1819.
In 1843 Sir Charles Napier annexed the
territory of Sind, and made it into a Governor's' Province, which was later
turned into a Division of the Province of Bombay. Kutch continued to be ruled
by the 290 Maharao, the British authorities having posted a Political Agent at
the capital of the, State.
In 1855 the Department of Survey of India
commenced a revenue, and topographical survey of the Province of Sind.
The survey, called the Macdonald Survey, was
completed in 1870, and survey maps were prepared and published in 1876.
It is not clear whether the southern
boundaries of the Sind villages shown in the maps were village boundaries, or a
boundary conterminous between the territory of Sind and Kutch State.
The next survey was undertaken under Major
Pullan in 1879 and was completed in 1886. Under this project survey of the
State of Kutch was undertaken. The northern boundary of Kutch State roughly
tallied with the Macdonald alignment of the Sind boundary. The relevant maps
were published in 1882.
Another survey of a part of the boundary on
the Sind side was undertaken in 1904-05 by C. F. Erskine. The alignment of the
boundary with a few corrections tallied with the Macdoland alignment. This
survey was intended to be a checking survey and related to the western region
extending up to a point near Rahim ki Bazar.
About the year 1907-08 the Commissioner of
Sind raised certain disputes relating to encroachments on the territory under
his administration by the Maharao of Kutch. The Government of India made an
enquiry and a resolution, dated February 24, 1914, was.issued by the Government
of the Province of Bombay, of which Sind was then a Division. By the resolution
the, disputed area was divided by a new alignment which was partly identical
with the claim made by the Kutch State along the Sir Creek from its mouth to
its extremity and then slightly departed from it. In the other regions the
alignment of the Macdonald Survey was adhered to. To the resolution was annexed
a map on which the rectified boundary was shown. A Secretary in the Foreign
Department of the Government of India recorded that "the Government of
India observe with satisfaction that the dispute between the Sind authorities
and the Kutch Durbar has been settled by a compromise agreeable to both parties
and are pleased to accord their sanction to the rectification of the, boundary
line proposed in paras 9 and 10". To the letter of the Secretary to the
Government of Bombay, Political Department, consent to the rectification of the
boundary was evidenced by a letter of the Maharao under his own signature.
Pursuant to this resolution in 1924, pillars were fixed up to a point known as
the Badin-Ja-jato-Rann tri-junction.
In 1935 the new Province of Sind was
constituted. By the government(Constitution of Sind) Order, 1936, it 291 simply
provided, therein that-"In the Act and this Order, Sind means the
territory known at the date of this Order, as the Division of Sind, and the
boundaries of that Division shall be the boundaries of Sind." It was
originally intended to set out by a Schedule to the Order the boundary of Sind,
and an Index Map was prepared by the Surveyor General for that purpose. By a
communication from the Secretary of State for India in Council, it was
recommended that a Schedule to the Order defining the boundary was not
necessary and the Governor-General accepted that suggestion.
The fourth survey-called the Onmaston
Survey-was commenced in 1938-39 : it was intended to be a survey of the Eastern
part of the Tharparkar District. This survey adopted the alignment of the
Macdonald Survey in that region showing a conterminous boundary between Sind
and the States of Western India (now within the State of Gujarat).
With the enactment of the Indian Independence
Act, 1947 (10 & 1 1 Geo. VI c. 30) the paramountcy of the British power
lapsed, and the two independent Dominions of India and Pakistan were carved out
with effect from the appointed day.
By s. 2(2) of the Act the territories of
Pakistan were to be(b)the territories which, at the date of the passing of this
Act, are included in the Province of Sind .... and (c) On May 4, 1948, the
State of Kutch merged with the Dominion of India and by Article 1 of the Agreement
of Merger the Maharao ceded to the Dominion of India full and exclusive
authority over the governance of the State. On June 1, 1949, the administration
was taken over by the Government of India , and the territory was constituted
into a Chief Commissioner's Province under s. 2(1)(c) of the States Merger
(Chief Commissioner's Province) Order, 1949. Under the Constitution the
territory became a Part 'C' State. Its extent was determined by the 2nd
paragraph in Part C to, Schedule 1 of the Constitution as "territories
which by virtue of the 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's Province of the same name."
By s. 8 (1) (e) of the States Reorganization. Act, 1956, the, territory of the
Part C State of Kutch was incorporated with the State of 292 Bombay, and by s.
3 (a) of the Bombay reorganization Act, 1960, it was included in the newly
formed State of Gujarat.
From July 1948 and onwards diplomatic notes
were exchanged between the Governments of India and Pakistan concerning the
boundary between the two countries in the Gujarat-West Pakistan Sector. The
dispute led to great tension between India and Pakistan resulting in armed
conflict in April 1965. By an agreement dated June 30, 1965, the Government of
India and the Government of Pakistan concluded an agreement For setting up
machinery "for determination and demarcation of the border" in 'the
area of Gujarat-West Pakistan. The agreement in so far as it is relevant
provides Art. 1-"There shall be an immediate ceasefire with effect from
0030 hours GMT on 1.
Art. 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) (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 ceasefire, 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 Government and the third mem293 ber, who
will be the Chairman, shall be jointly selected by the two Governments. In the
event of the two Governments 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 Governments, 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
being until its findings have been implemented in full.,, The Ministerial
Conference contemplated to be held did not take place, and the two Governments
decided to have recourse to the Tribunal to be constituted under article 3(iii)
of the agreement. A Tribunal of three members, one appointed by each State and
the Chairman nominated by the Secretary General of the United Nations
Organization was set up. The agreement between the two States was reached
purely as an executive act, and no legislative sanction was obtained by the
Government of the Union of' India to its implementation.
The respective claims before the Tribunal by
India and Pakistan are set out in paragraph 3 (1 ) of the agreement and at pp.
7, 8 & 9 of the Introductory Part of the award which apparently had the
concurrence of all the members of the Tribunal. On behalf of the Government of
India it was submitted that the boundary lay as detailed in Map 'A annexed to
the award which is a mosaic of Indian Maps B-44, B-37, B-19 and B-79. It was
common ground between the two Governments that "the Gujarat-West Pakistan
boundary stretches from the mouth of the Sir Creek in the west to a point on
the Jodhpur boundary in the each. The Parties agree that the Western Terminus
of the boundary to be determined by the Tribunal is the point at which the blue
dotted line meets the purple line as depicted in Indian Map B-44 and the
Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is
a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as
depicted in Pakistan Map 137. This agreement leaves out of the matters
submitted to the Tribunal the portion of the boundary along the blue dotted
line, as depicted in Indian Map B-44 and the Pakistan Resolution Map, as well
as the boundary in the Sir Creek. The blue dotted line is agreed' by both
Parties to form the boundary between India and Pakistan..
294 In view of the aforesaid agreement, the
question concerning the Sir creek part of the boundary is left out of
consideration." It was also common ground that "before Independence
the boundaries between the Province of Sind, on the one hand, and one or more
of the Indian States which lay on the opposite side of the Great Rann, on the
other hand, were conterminous. Therefore, in the disputed region, apart from,
India and Pakistan there is no other State that does or could have sovereignty.
There is between India and Pakistan a conterminous boundary today, whether or
not there was at all times a conterminous boundary between Sind and the Indian
States." The contention raised by Pakistan was "(a) that during and
also before the British period, Sind extended to the south into the Great Rann
up to its middle and at all relevant times exercised effective and exclusive
control over the northern half of the, Great Rann;
(b)that the Rann is A "marine
feature" (used for want of a standard term to cover the, different aspects
of the Rann). It is a separating entity tying between the States abutting upon
it. It is governed by the principles of the median line and of equitable
distribution, the bets in the Rann being governed by the principle of the
"nearness of shores";
(c)that the whole width of the Rann (without
being a condominium) formed a broad belt of boundary between territories on
opposite sides; that the question of reducing this wide boundary to a width less
line, though raised, has never been decided; that such width less line would
run through the middle of the Rann and that the Tribunal should determine the
said tine." Pakistan accordingly claimed that the border of Sind extended
up to the boundary shown by the thick green dotted line in Map 'B'.
It was agreed by both the Governments that
"should the Tribunal find that the evidence establishes that the disputed
boundary between India and Pakistan lies along a line different from. the claim
lines of either party, the Tribunal is free to declare such a line to be the
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 to provide for fixing its location on site. It was
agreed between the Agents of India and Pakistan that295 1.'The basis of
demarcation shall be the alignment of the boundary as delineated by the
Tribunal on maps to be annexed to the Award. Each Government should be supplied
with two sets of these maps duly authenticated by the Tribunal.
3.The Representatives of the two Governments
shall meet at Delhi not later than two weeks after the Award is rendered to
discuss and decide upon the following matters :
(i) The strength of the team. (It is not
possible to give the exact number of personnel composing the team at this stage
as the strength of the team will depend upon the alignment of the boundary and
the quantum of work involved which can be ascertained only after the Award is
(ii)The design and specifications of the
boundary pillars and traverse pillars, the number and spacing of pillars. (The
design and specifications of the boundary pillars will depend upon the
alignment of the boundary and the nature of the terrain. The pillars may be of
cement concrete, stone or masonry according to the requirements (iii)Detailed
operational instructions for the guidance of the field staff. (Such operational
instructions have to be necessarily finalised only after the nature of the
alignment is known).
(iv)Any other matter which requires
consideration for effective demarcation work.
If the Representatives of the two Governments
do not agree upon any of the above matters either Government shall immediately
report to the Tribunal the matters in difference for the decision of the Tribunal.
6.The first task of the demarcation team
shall be to ascertain if any control points exist and are available, These
control points should be supplemented, wherever necessary, in order to
determine the pillar positions on the ground in accordance with the alignment
of the boundary. If control points do not exist or are not available, a fresh
series of triangulation or traverse will be carried out and control points
determined and the pillar position-, located with the help of these points.
296 7.Simultaneously with the location of the
pillar positions, pillars shall be emplaced at each position. " The award
was published by the Tribunal on February 19, 1968. By the decision of the
Chairman of the Tribunal (Judge Gunnar Lagergren) with whom Ambassador
Nasrollah Entezam agreed and Ambassador Ales Babler disagreed in part, the
boundary was aligned from point W T to E T in Map 'C'.
It is unnecessary to set out the detailed
description of the boundary. " claim of the Government of India to the
Rann was accepted. The claim of the Government of Pakistan to approximately
3,500 square miles out of the Great Rann was rejected except as to 350 square
miles, of which more than 325 square miles are found beyond the Rann or on
which the Maharao had not exercised sovereign authority . The Tribunal
unanimously accepted the claim that the Great Rann of Kutch was part of the
territory of the State of Kutch and is now Indian territory. But the majority
of the Tribunal accepted the claim of Pakistan, substantially to the following
three sectors :
(1)Marginal area south of Rahim ki Bazar,
marked by B, C, D in Map 'C', this may be called the Kanjarkot Sector;
(2)The area marked in the Map 'C' by letters
E, F, G, H, K which may be called Dhara, Banni and Chhad Bet Sector;
(3)Two inlets which practically encircle
Nagar Parkar which have apparently characteristic features of the Rann but are
still declared to be within the border of Pakistan by drawing straight lines
from points L to M and N to 0 in Map 'C'.
The reasons for declaring the first two
sectors as Pakistan territory are set out (at p. 152 of the printed award) by
the Chairman Judge Gunnar Lagergren as follows "Reviewing and appraising
the combined strength of the evidence relied upon by each side as proof or
indication of the extent of its respective sovereignty in the region, and
comparing the relative weight of such evidence, I conclude as follows. In
respect of those sectors of the Rann in relation to which no specific evidence
in the way of display of Sind authority, or merely trivial or isolated evidence
of such a character, supports Pakistan's claim, I pronounce in favour of India.
These sectors comprise about ninety per cent of the disputed territory.
However, in respect of sectors where a
continuous and for the region intensive Sind activity, meeting with no
effective opposition from the Kutch side, is established, 1. am of 297 the
opinion that Pakistan has made out a better and superior title. This refers to
a marginal area south of Rahim ki Bazar, including Pirol Valo Kun, as well as
to Dhara Banni and Chhad Bet, which on most maps appear as an extension of the
mainland of Sind." About Item (3) Judge Gunnar Lagergren was of the view
that to prevent friction and conflict the inlets ,should not be declared Kutch
The effect of an international treaty on the
rights of citizens of the States concerned in the agreement is stated in
Oppenheim's International Law, 8th Edn., at p. 40 thus "Such treaties as
affect private rights and, generally, as require for their enforcement by
English courts a modification of common law or of a statute must receive
parliamentary assent through an enabling Act of Parliament. To that extent
binding treaties which are part of International Law do not form part of the law
of the land unless expressly made so by the legislature." and at p. 924 it
is stated The binding force of a treaty concerns in principle the contracting
States only, and not their subjects. As International Law is primarily a law
between States only and exclusively, treaties can normally have effect upon
States only. This rule can, as has been pointed out by the Permanent Court of
International Justice, be altered by the express or implied terms of the
treaty, in which case its provisions become self executory. Otherwise, if
treaties contain provisions with regard to rights and duties of the subjects of
the contracting States, their courts, officials, and the like, these States
must take steps as are necessary according to their Municipal Law, to make
these provisions binding upon their subjects, courts, officials, and the
like." In Wade and Phillips' Constitutional Law, 7th Edn., :It is stated
at p. 274 :
" At first sight the treaty-making power
appears to conflict with the constitutional principle that the Queen by
prerogative cannot alter the law of the land, but the provisions of a treaty
duly ratified do not by virtue of the treaty alone have the force of municipal
law. The assent of Parliament must be obtained and the necessary legislation
passed before a court of law can enforce the treaty, should it conflict with
the existing law." 298 On p. 275 it is stated that "treaties which,
for their execution and application in the United Kingdom, require some
addition to, or alteration of, the existing law" are treaties which
involve legislation. The statement made by Sir Robert Phillimore, Judge of the
Admiralty Court in The Parlement Belge(1)-(though the ultimate decision was
revised by the Court of Appeal in another point [vide (1880) 5 P. D. 197] in dealing
with the effect of a "Convention regulating Communications by Post"
signed and ratified in 1876 which purported to confer upon Belgian mail
streamers. immunity of foreign warships is appropriate :
"If the Crown had power without the
authority of parliament by this treaty to order that the Parlement Belge should
be entitled to all the privileges of a ship of war, then the warrant, which is
prayed for against her as a wrongdoer on account of the collision, cannot
issue, and the right of the subject, but for this order unquestionable, to
recover damages for the injuries done to him by her is extinguished.
This is a use of the treaty-making
prerogative of the Crown which I believe to be without precedent, and in
principle contrary to the laws of the Constitution." In Walker v. Baird(2)
the Judicial Committee, affirming the decision of the Supreme Court of
Newfoundland, observed that the plea of act of State raised in an action for
trespass against the Captain of a British fishery vessel who was authorised by
the Commissioners of the Admiralty to superintend the execution of an agreement
between the British Crown and the Republic of France, which provided that no
new lobster factory shall be established on a certain part of the coast of
Newfoundland could not be upheld.
The Judicial Committee in Attorney-General
for Canada v. Attorney-General for Ontario and Others(3) made some observations
in the context of a rule applicable within the British Empire, which are
"It will be essential to keep in mind
the distinction between (1) the formation, and (2) the performance, of the
obligations constituted by a treaty, using that word as comprising any
agreement between two or more sovereign States. Within the British Empire there
is a well-established rule that the making of a treaty is an executive act,
while the performance of its obligations, if they entail alteration of the
existing domestic law, requires legislative action. Unlike some other
countries, (1)  4P.D.129. (2)  A.C.491.
(3)  A.C. 326, 347.
299 the, stipulations of a treaty duly
ratified do not within the Empire, by virtue of the treaty alone, have the
force of law. If the national executive, the Government of the day, decide to
incur the obligations of a treaty which involve alteration of law they have to
run the risk of obtaining the assent of Parliament to the necessary statute or
Parliament, no, doubt, .... has a
constitutional control over the executive :
but it cannot be disputed that the creation
of the obligation.-. undertaken in treaties and the assent to their form and
quality are the function of the executive alone. Once they are created, while
they bind the State as against the other contracting parties, Parliament may
refuse to perform them and so leave the State in default." These
observations are valid in the context of our constitutional set up. By Art. 73,
subject to the provisions of the Constitution, the executive power of the Union
extends to the matters with respect to which the Parliament has power to make
laws. Our Constitution makes provision making legislation a condition of the
entry into an international treaty in times either of war or peace. The
executive power of the Union is vested in the, President and is exercisable in
accordance with the Constitution. The executive is qua the State competent to
represent the State in all matters international and may by agreement,
convention or treaties incur obligations which in international law are binding
upon the State. But the obligations arising under the agreement or treaties are
not by their own force binding upon Indian nationals. The power to legislate in
respect of treaties lies with the Parliament under Entries 10 and 14 of List I
of the Seventh Schedule.
But 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 or others which are justiciable are not affected, no legislative measure
is needed to give effect to the agreement or treaty.
The argument raised at the Bar that power to
make treaty or to implement a treaty, agreement or convention with a foreign
State can only be exercised under authority of law, proceeds upon a misreading of
Art. 253. Article 253 occurs in Ch. 1 of Part XI of the Constitution which
deals with legislative relations: Distinction of Legislative Powers.
By Art. 245 the territorial operation of
legislative power of the Parliament and the State Legislatures is delimited,
and Art. 246 distributes legislative power subject-wise between the Parliament
and the State Legislatures. Articles 247, 249, 250, 252 and 253 enact some of
the exceptions to the rule contained in Art. 246. 'Me effect of Art. 253 is
that if a treaty, agreement or convention with a foreign State 300 deals with a
subject 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 or any decision made at any international
conference, association or other body. 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 seekto circumscribe the extent of the
power conferred by Art. 73. If, in consequence of the exercise of executive
power, rights of the citizens or others are restricted or infringed, or laws
are modified, the exercise of power must be supported by legislation: where
there is no such restriction, infringement of the right or modification of the
laws, the executive is competent to exercise the power.
It may be recalled that cl. 3 (iv) of the
Agreement included a covenant that the decision of the Tribunal shall be
binding on ,both the Governments. The power of the executive to enter into that
covenant cannot also be challenged, and was not challenged. It was conceded
that if the contention based on Art.. 253 was not accepted, the award of the
Tribunal by majority of two (Judge Gunnar Lagergren with whom Ambassador
Nasrollah Entezam agreed) was binding upon the Government of India. It was
accepted that as an international agreement between the two States represented
by their executive Governments it became binding between the two States as expressly
undertaken. No argument was urged that there exist any grounds which may
justify the Union of India from declining to implement the agreement.
The award of the Tribunal has, it was
conceded, to be implemented as an international obligation. Counsel who
represented the claimants, and claimants who argued their cases, before us:
adopted an eminently fair attitude. it was not urged that the award was not
binding upon the Union of India : their plea urged with moderation was that
insofar as the award affected the territorial limits of India, it required a
It was not suggested that apart from the
claim to exercise rights to move freely throughout the territory of India under
Art. 19(1) (d), and to reside and settle in any part of the territory of India
under Art. 19 (1) (e) any other right of any individual citizens was likely to
be infringed by the implementation of the award. The nature of the terrain of
the disputed territory precludes any other claim being made, There are no local
residents, no private property and no agriculture. For four months in the year
it is mostly under water, for the rest of the year it is marshy land. But it
was claimed that every individual citizen of India is entitled to exercise the
privileges under cls. (d) and (e) of Art. 19(1) in respect of territory between
the boundary shown in Map 'A annexed to the award, and the boundary delineated
by Map 'C" which represents, in the view of the Tribunal, the 301 border
between the two States, is Indian territory and deprivation of the rights of
the citizens under Art. 19 (1) (d) & (e) can only be achieved if the
cession of what is now part of the territory of India be ceded under the
sanction of a constitutional amendment Mr. Limaye petitioner in Writ Petition
No. 402 of 1968 claimed that he made an attempt to enter the territory which
under the award falls 'within the Pakistan Border, and was prevented by the
security police from entering that area. The only question to be determined
therefore is whether in implementing the award, the.
executive Government is ceding territory of
India to Pakistan.
I have set out the terms of the agreement and
the disputes raised by the two States in some detail. 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 of the final
award, make it abundantly clear that the dispute related to the boundary
between the two States : it was referred as a boundary dispute, the respective
claims urged were about the location of the boundary line, and the operative
part of the award declared the alignment of the boundary, which has under the
terms of the agreement relating to the procedure for demarcation to be filed by
pillars on the alignment.
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 advice rendered to the President in a
reference made to this Court under Art. 143 in Re : The Berubari Uninion and
Exchange of Enclaves(1) this Court was called upon to determine the true nature
of the agreement between the Prime Ministers of India and Pakistan-each Prime
Minister acting on behalf of his Government September 10, 1958, for a division
of the Berubari Union in the State of West Bengal and exchange of certain
enclaves and whether the agreement may be implemented otherwise than by a
This Court held that the agreement between
the two Prime Ministers did not seek to interpret the Radcliffe Award or to
determine the boundary between the two States. It Was agreed by the two Prime
Ministers that a part of the Berubari Union which was allotted to India under
that Award and was in occupation of India was to be ceded to Pakistan, and
enclaves within Pakistan but in occupation of India de lure were to be
exchanged for similar enclaves of Pakistan within Indian territory. This Court
advised the President that the appellant could be implemented under the authority
of a constitutional amendment only. The Parliament then enacted the
Constitution. (Ninth Amendment) Act, 1960, assuming power to implement the
agreement and the (1)  3 S.C.R. 250.
302 two other agreements dated October 23,
1959 and January 11, 1960. Another matter arising out of those agreements
between the two Prime Ministers was brought before this Court by an appeal from
an order passed by the High Court of Calcutta in a writ petition : Ram Kishore
Sen & Ors. v.
Union of India and Ors.(1). It was proposed
pursuant to the Constitution (Ninth Amendment) Act, 1960, to transfer, among
other territory, a part of the village of Chilahati in the occupation of the
State of West Bengal in India. A petition filed in the High Court of Calcutta
challenging the validity of the proposed transfer to Pakistan on the ground
that village Chilahati which was part of the Indian territory could not be
transferred by the Government of India. The High Court of Calcutta rejected the
petition. In appeal to this Court it was urged, inter alia, that the disputed
part of the village Chilahati though allotted to Pakistan was not delivered to
Pakistan and had become part of the State of West Bengal, because it was being
administered as if it formed part of the territory of West Bengal within the
meaning of Entry 13 Part'A Sch. I as amended by the Constitution (Amendment of
the First & Fourth Schedules) Order-, 1950. The Court held that the
proposed transfer of a part of the village of Chilahati, which was allotted to Pakistan
under the Radcliffe Award but was not delivered, and continued to remain
administered as a part of the State of West Bengal,was not constitutionally
In In Re : The Berubari Union and Exchange of
Enclaves(2) there was no question of-demarcation of a disputed boundary : it
was a case of pure cession of Indian territory. Ram Kishore Sen & Ors'
case(1) which dealt, among others, with the cession of 500 acres of Chilahati
village related to transfer of territory which though temporarily under.
Indian administration had never become Indian
The principle of the First Berubari case has
no application here and the principle of the Second Berubari case is against
the contention raised by the claimants.
But the claimants urge that by the alignment
of the boundary under the award, territory which is Indian is now declared
foreign territory, and it cannot be implemented without the authority of an
amendment modifying the boundary of the State of Gujarat in which is now
included the Rann of Kutch.
Now the alignment of the boundary under the
award deviates from the alignment claimed by the Government of India before the
Tribunal in three in ran, respects which have already been set out. The
Tribunal was of the view, on' a consideration of the maps produced, that there
did not exist at any time relevant to the proceedings a historically recognized
and well-established (1) 1 S.C.R. 43O.
(2)  3 S.C.R. 250.
30 3 boundary in the, three sectors. About
the Kanjarkot Sector the Chairman observed :
"The evidence shows that Kutch did not
make any appearance in this area until 1946, and then only abortive attempts
were made by the sons of the lessee, Node Sadi Rau, to go there in order to
collect Panchari. They reported that they did not even dare to stay overnight
in the place. While no specific evidence has been submitted which proves any
activities undertaken by Sind subjects in Pirol Valo Kun, the reports of the
Kutch lessees establish that Sind inhabitants engaged in grazing there." and
further observed at p. 151 "In a sector bounded to the south by the
southern limit of Pirol Valo Kun, not only is there a total absence of
effective Kutch activity, but there is a consistent exercise of sovereign
rights and duties by Sind authorities, and activities of residents of Sind, in
one instance, taking the form of a permanent settlement at Shakur." The
territory in this sector is contiguous to and in fact is an extension of the
mainland of Sind, and apart from the survey maps there is no evidence that it
is part of the Great Rann of Kutch. No serious argument was advanced to
establish that on Kanjarkot, the Kutch State at any time exercised sovereign
About the Dhara Banni and Chhad Bet Sector
Judge Gunnar Lagergren observed (at p. 141) ".....on the evidence on
record it may be taken as positively established that, in this century, prior
to independence, outside Dhara Banni and Chhad Bet (which will be treated
presently), the police and criminal jurisdiction of Sind authorities over
disputed territory extended, in the sector between the eastern loop and Dhara
Banni, to Ding, Vighokot and Biar Bet. There is, however, no evidence which
affirmatively proves in a conclusive fashion that the jurisdiction of Sind
police and Sind courts encompassed areas west of the eastern loop, or east of
Chhad Bet. Conversely, no proof is offered that Kutch either assumed or
exercised such jurisdiction over any part of the disputed territory (leaving
aside Dhara Banni and Chhad Bet)." He again observed (at p. 144) :
".....I deem it established that, for
well over one hundred years, the sole benefits which could be derived 304 from
those areas are enjoyed by inhabitants of Sind. It is not suggested that the
grazing as such was subject to British taxation. Such limited evidence as there
is on record seems, however, to justify the assumption that the task of
maintaining law and order was discharged by the Sind authorities-, it is not
even suggested that the authorities of Kutch at any time viewed such a task as
forming part of their duties......... Whatever other Government functions were
required with respect to these outlying grazing grounds, on which herds of
cattle were from time to time shepherded, were apparently undertaken by Sind.
Thus, the births, deaths and epidemics occurring there were recorded by the
taluka office in Diplo. It is not shown that Kutch at any time established a
thana on Chhad Bet." He finally observed (at p. 151) "The remaining
sector within the area described above in which authority, in this instance
exclusively for the protection of activities of private, individuals, is shown
to have been displayed by Sind authorities in a manner which is not sporadic
but consistent and effective, is Dhara Banni and Chhad Bet.
As stated earlier, the activities undertaken
by Kutch in these areas cannot be characterised as continuous and effective
exercise of jurisdiction. By contrast 9 the presence of Sind in Dhara Banni and
Chhad Bet partakes of characteristics which, having regard to the topography of
the territory and the desolate character of the adjacent inhabited region, come
as close to effective peaceful occupation and display of Government authority
as may reasonably be expected in the circumstances. Both the inhabitants of
Sind who openly used the grazing grounds for over one hundred years and the
Sind authorities must have acted on the basis that Dhara Banni and Chhad Bet
were Sind territory." The claimants urged that the territory in this
Sector belonged to the Kutch State and that claim was supported by survey maps,
correspondence between the officials of Kutch State and the British
Administration, assertions made in the Annual Administration Reports for 75
years before 1947, Statistical Abstracts relating to British India, Bombay
Administration Reports Gazetteers, Memorandum on Indian States and a number of
official publications, and by the Resolution of the Government of Bombay, dated
305 February 24, 1914. It would be a fruitless exercise to enter upon this
historical material. The survey and other maps do not Jay down a uniform or
Macdonald Survey appears to align the
boundary of Sind towards the north even of Rahim ki Bazar which is admittedly
on the mainland of Sind, and was never claimed as part of the Rann. This lends
support to the view that the Macdonald Survey report was rough, and was
intended to be a topographical map. The maps prepared at the later surveys
follow, with some variations and rectifications, the Macdonald Survey
alignment, but those survey maps also do not indicate an international
boundary. About Pullan's Survey it may be observed that Pullan himself stated
that he had "carefully abstained from laying down" or suggesting a
boundary (vide Resolution of the Government of Bombay July 3 and August 7, 1885).
The attitude adopted by the Government of Bombay which is set out in the
resolution was that they "did not desire" that any "question of
boundaries in the Rann between the Province of Sind and Kutch" should
beraised. Erskines Survey also is open to the criticism that as an officer of
the Sind Government he made statements in his letter, dated November 23, 1905,
disowning any intention to determine the boundary of the Rann, of Kutch. The
maps prepared in the Erskine Survey were not accepted as evidencing a boundary.
Even the Maharao of Kutch did not agree to accept the alignment. By the
resolution of 1914, it does appear that an attempt was made to resolve the
dispute about certain disputed pockets, between the British authorities
governing Sind and the Maharao of Kutch. But a review of the correspondence of
1905, followed by erection of Pillars up to the western tri junction, and
establishment of a customs line in 1934appear to suggest that the boundary east
of the tri junction was in a state of uncertainty. 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 is very scrappy and discrepant. An. attempt to determine how far
general statements of claim and refusal thereof were applicable to the sector
now in dispute would serve no useful purpose.
Different positions were adopted by the
officers of the Government of India according as the exigencies of a particular
situation demanded. The 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. The claimants before us were unable to
pinpoint any definite and reliable piece of evidence which established the
exercise of sovereign authority by the Maharao of Kutch over the second sector.
It is true that the-territory of the entire
State of Kutch merged with the Dominion of India. That territory was treated as
Indian, 3 06 territory and was at first governed as a separate administrative
unit. But unless it be established that the disputed sectors were part of the
Kutch State, no firm conclusion can be drawn from the agreement of merger.
Undoubtedly the Government of India claimed
at all material times the territory in Sectors (1) and (2). In respect of the
Kanjarkot Sector there is no evidence of exercise of sovereign authority by the
Maharao of Kutch at any point of time. The sector is apparently contiguous to
and an extension of the mainland of Sind. It is not shown that it has the
characteristics of the Rann terrain. The Dhara Banni and Chhad Bet Sector is
also apparently an extension of the mainland of Sind. There is no reliable
evidence about the enjoyment of the benefits of the land in the Sector by the
inhabitants of Kutch. Evidence of the exercise ,of suzerainty by the Maharao of
Kutch over that Sector is also sadly lacking. The sector has more pronounced
features of the Rann terrain, but it appears also to be contiguous to the
mainland of Sind. Even granting that the evidence about the exercise of
sovereign authority by the British authorities governing Sind since 1843 over
the Rann of Kutch is inconclusive, the claim by Indian citizens to exercise
fundamental rights in respect of the territory in that Sector may be
entertained only if it be established that the territory is found to be
originally governed by the Maharao of Kutch. On that part of the claim,
concrete evidence is wanting.
It was contended that the total area of Kutch
according to the White Paper on Indian States was 17,249 square miles out of
which the area of the Kutch mainland was 8,461 square miles and the balance was
8,788 square miles which consists of the Great and Little Ranns of Kutch. In
the Kutch Administration Report for 1910-11 and thereafter the area of Kutch
was stated to be "7616 square miles" and it was stated that "the
Rann also belongs to the.Maharao". In 1931 a correction was introduced
that the area of the State was 8249.5 square miles 'exclusive of the Rann of
Kutch which belongs to the Kutch State territory. The Bombay Administration
Reports from 1871-72 to 1923-24 give varying figures as the area of Kutch and
make a general statement that the Rann of Kutch belongs to the State. The statement
in the Imperial Gazetteers of 1881, 1885, 1908, 1909 contain Statements about
the areas which are so discrepant that no reliance can be placed upon them.
Similarly the recitals about the extent of the Rann, in the Gazetteers of the Bombay
Presidency are also imprecise. The only safe conclusion that can be drawn from
these documents is that the Rann was part of Kutch State but do not lend any
assistance in determining the northern boundary of the Rann.
30 7 It is stated in the affidavit of Mr. Dholakia
that the area of the Kutch District was 16567.3 square miles inclusive of 9000
square miles of Rann territory. But evidently the area of the Rann is a rough
In the Census of 1941 the area of Kutch was
shown as 8,461 square miles and in 1951 Census as 16,724 square miles inclusive
of Rann. There is no evidence that the figures are based upon any precise
survey in the context of an accepted boundary.
The Census of 1961 shows that there were 171
residents in the Chhad Bet. But these consist exclusively of the Border Guards
posted in that area. It is conceded that there is no local population in Chhad
Bet and Dhara Banni. The inclusion of Chhad Bet in the area within a polling
station for the 1967 General Elections also supports merely an assertion that
it was claimed to be Indian territory. It is not evidence of the fact that it
was territory over which the Maharao of Kutch exercised sovereign rights and
which by merger of the territory became Indian territory.
The evidence on which reliance was mainly
placed in support of the claim was the conflicting alignments in the survey and
other maps, the claims made by the Maharao of Kutch aid the Government of India
which were not accepted. 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 of the two sectors, unless the
suzerainty of the State of Kutch is established. The boundary between the two
States was indefinite and by the award of the Tribunal the true boundary of
India and Pakistan is determined: the award does not purport to, nor does it
operate as giving rise to, an obligation to cede Indian territory.
The two inlets which practically encircle
Nagar Parkar are declared to be within Pakistan Border on the ground that it
would be inequitable to recognise those inlets as foreign territory. It was
said by the Chairman of the Tribunal that the existence of such foreign
territory may be "conducive to friction and conflict". Regarding the
two inlets the position is different since the ultimate decision of the
Tribunal is founded on considerations of expediency and not on strict
determination of rights. We have no power to sit in appeal over the decision of
the Tribunal. 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 to
relief. Unless there is evidence to show that the inlets were territory over
which the Maharao of Kutch had sovereign rights, acceptance of the award is not
required to be implemented by a constitutional amendment.
The total area of the inlets, we are 308
informed by counsel on both sides, does not exceed 25 square miles. In the
turbulent times which preceded the occupation of Sind by the East India Company
in 1843 or even thereafter it is unlikely that any authority was exercised by the
Maharao of Kutch over these inlets. It appears from some of the maps that at
the extremities the inlets are very narrow : and roads cross these inlets from
Nagar Parkar, which is of the shape of a penninsula into the mainland of Sind.
It is difficult to accept that at any time effective sovereign authority could
have been exercised over these inlets by the Maharao of Kutch. There is no
evidence of exercise of any such right, before or after the occupation of Sind.
There being no evidence of exercise of sovereign authority by the Maharao of
Kutch, this Court cannot treat it as part of Indian territory.
On the view the claim made by the claimants
that in implementing the award of the International Tribunal an attempt is made
to cede any part of the territory which formed part of the State of Kutch before 1948, or was in de facto occupation and in respect of which sovereign
authority was exercised by the Maharao of Kutch. 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.
The appeal and the writs are dismissed.
There will be no order as to costs in the
appeals and the writ petitions.
R.K.P.S. Appeals and petitions dismissed.