# MAGANBHAl~HWARBHAIPATEL v. UNION Olf INDIA AND ANR

- **Citation:** [1969] 3 S.C.R. 254
- **Court:** Supreme Court of India
- **Decided:** 1969-01-09
- **Case number:** Civil Appeal No. 1528 of 1968
- **Bench:** M. HmAYATULLAH, J. c. SHAH, V. Ramaswami, G. K. Mitter, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maganbhal-hwarbhaipatel-v-union-olf-india-and-anr-4868
- **Pages:** 55

## Headnote

ConStitution of Jndia, Arts" 1, 3, 73, 254, Entries
14,
15 List I,
Schedule VII-Award settling disputed boundory-lf constitutional amend1nent necess,)ry for ,implementation of award-Implementation of treaties,
and arbitral awards-Boundary 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 oc diminish the area of any
State. The power to legislate in re•pect 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 oountry
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 powet 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 agree~~nt".
With the enactment of the Indian Independence Act, 1947, and the
lapoe of Paramountcy Of the Crown the State of Kutch merged with the
Dominion of India.
The te1ritory was constituted into a Chief Comrrll'ssioner's Province and up- ·er the Constitution, the territory became a
Part C Slate. Its extent was .determined by Part C to Sch. 1 of the Constitution as "territorie$ >vhich by virtue of an order made under s. 290A of
the Government of Intlia A~. 1935, were immediately before the commencement of. the Constituti0n being administered as if they were a Chief
Commissioner's Provil{ce of_ the same name".
Kutch was incorporated
in the State of Bombay by the Stales Reorganisation Act, 1956 and was
included in the new Sta ot Gujarat by the Bombay Reorganisation Act,
1960.
The Great Rann of KUtch lies between the malnland 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 shift
ing, its extent depending on the violence of natural element.$ in different
years.
The northern boundary of the Ra.nil, 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 Gujarat-West Pakistan Sector. The dispute led
to great tension between the two r.ountries resulting in armed conflict in
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MAGANBHAI V. UNION
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 Febrnary 19, 1968,
the Tribrinal 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 th

## Text

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MAGANBHAl~HWARBHAIPATEL
v.
UNION Olf INDIA AND ANR.
January 9, 1969
[M. HmAYATULLAH, C.J., '. J. c. SHAH,
V. RAMASWAMI,
G. K. MITTER AND A. N. GROVER, JJ.]
ConStitution of Jndia, Arts" 1, 3, 73, 254, Entries
14,
15 List I,
Schedule VII-Award settling disputed boundory-lf constitutional amend1nent necess,)ry for ,implementation of award-Implementation of treaties,
and arbitral awards-Boundary 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 oc diminish the area of any
State. The power to legislate in re•pect 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 oountry
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 powet 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 agree~~nt".
With the enactment of the Indian Independence Act, 1947, and the
lapoe of Paramountcy Of the Crown the State of Kutch merged with the
Dominion of India.
The te1ritory was constituted into a Chief Comrrll'ssioner's Province and up- ·er the Constitution, the territory became a
Part C Slate. Its extent was .determined by Part C to Sch. 1 of the Constitution as "territorie$ >vhich by virtue of an order made under s. 290A of
the Government of Intlia A~. 1935, were immediately before the commencement of. the Constituti0n being administered as if they were a Chief
Commissioner's Provil{ce of_ the same name".
Kutch was incorporated
in the State of Bombay by the Stales Reorganisation Act, 1956 and was
included in the new Sta ot Gujarat by the Bombay Reorganisation Act,
1960.
The Great Rann of KUtch lies between the malnland 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 shift
ing, its extent depending on the violence of natural element.$ in different
years.
The northern boundary of the Ra.nil, 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 Gujarat-West Pakistan Sector. The dispute led
to great tension between the two r.ountries resulting in armed conflict in
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MAGANBHAI V. UNION
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 Febrnary 19, 1968,
the Tribrinal 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 had 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 confrol 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 ·ii 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, treatin~ 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 BJ
(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) :
(i)
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 ther~ are fatal Oll)issions, contradictions
obscurities or the arbitrators substantially exceeded their jurisdiction. Nooe
of these factors obtains here and the petitioners have rightly refrained
from challenging the binding nature of the Award. [269 Fl
(ii) When a treaty or an Award at:ter arbitration comes into existence
it has to be implemented and this can only be if all the three branches of
Government; to wit, the legislatuie the executive and the judiciary, or any
of them, possesses the po)Ver to implement it. The practice of nations
is different in the matter of implementation of treaties and arbitratioo
awards in boundary disputes in· particular. The question is one of d1>-
mestic as well as International Law. In the United States of America a
freaty is the Supreme Law and it is only when the terms of a treaty require that a law must be passed that it has tQ 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 rDU$t 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 boun·
daries have to be ascertained and adjusted. [275 G]
256
SUPREME COURT REPORTS
(1969] 3 S.C.R.
Foster v. Neilson 2 Peters 253; Dickinson, Law of Nations; Blackstone's Commentaries, Forsyth Hansard vol. CLXIX p: 230, 231;
The
Parlement Beige, [1879J 4 P.D. 129; Walker v. Baird [1892J A.C. 491 and
Attorney-General for Canada v. Attorney-Generc,I for Ontario, [1937J A.C.
326 at 347, referred to.
In British India Parliamentary sanction was not necessary for cession
of territory. The Constitution of India does not contain any clear directioa about treaties such as is to be found in the United States and French
Comtjtutions. 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
lo 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-BJ
The precedents of this Court are clea:r only on one point, namely.
that no cession of Indian territory can take plaCi> 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
extmt Indian territories as defined in Art. 1 read with the 1st Schedule
waa reduced a constitutional amendment was held necessary. The second
Berubari case concerned territory which was de facto under administration
by India but being de ;ure that of Pakistan, transfer of that territory
which was not a part of Indian territolry was held not to require a constitutional amendment. Neither case dealt with a boundary dispute. [282 G283 CJ
In ,. : The Berubari Union and Exchange of Enclaves (The First
Berubari case), [1960J 3 S.C.R. 250 and Ram Kishore Sen v. Union of
India (The second Berubari case), [1966J 1 S.C.R. 430, explained.
The question on which side a disputed border falls is one of authdrity.
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
courta must assume it as a matter of law. It is scarcely to be thought that
the 'fBlidity 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 territciry. 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 adjusttnent 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
cu be •xpected and should be had. This has been the custom of nations
whose constitutions are nr.t sufficiently elaborate on this subject. r283 D284 BJ
(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
Com.missioner's Province of the same name" in Part C, to first Schedule
of the Constitution must be understood as was laid d1>wn by this Court
in the second Berubari case where the word "as iP' 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
bot"lC!aries. The Kutch merger agreement gives no clue to the boundaries
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MAGANBHA! v. UNION
257
and also leaves the matter at large. Also, in the States Merger (Cief Commissioner's) Province Order, 1949, in the States Reorganisation Act, 19S6
and in the Bombay Reorganisation Act, 1960 the boundaries of Kutch
are not mentioned.
Therefore, none of these docume~ts 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 lndia in 1956 and later
in 1965 that the area belonged to India was only a statement and cannot
be held to be of an evidentiary character. The claim map and other
evidence produced by India before the Tribunal show that there bas 11.ever
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 War<j Officers or the establishment
ot a polling booth for them at election time cannot connote administration
such as would make them territory of India. The diplomatic notes berp.n
soon after the establishment of the two dominions and the occupation
may have meant de facto control but there was no proof of dt iurt
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 ioto an international treaty in
times of war or peace. The executive is qua the State competent to re·
present 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 con·
stituted 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 Pc,/ement Beige, [1879] 4 P.O. 129, Walker v. Baird, [1892] A.C.
491 and Attorney-General for Canada v. Attorney .. General for Ontario,
[1937] A.C. 326, referred to.
The argument that power to make or implement a treaty agreement
or .:onvention 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 rower; thereby power is conferred upon the Parliament which it
may nl•! otherwise possess.
But it does not seek to circumscribe the extent c•f 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 po""er, rights of citizens dr others are restricted or infringed
or laws are modified. [299 G-300 CJ
(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 tel'lllll of the agreement
relating to the implementation of the Award and the final Award, mate it
abundantly clear that the dispute relates to the boundary between the twG
258
SUPREME COURT REPORTS
[1969] 3 S.C.R.
States, settlement of dispute which relates to the alignment of an undellnCld boundary between two States involves no cession of territory by either
State. 1n the First Berubari case this Court advised that · the IndoPakistan· 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 bas no application to the
facts of the present case. The second Berubari case related to transfer of
territory which though temporarily under Indian administration had never
become Indian territory. The principle of this case is against the contention raised by the petitioners. [301 C-302 FJ
In re : The 'nerubari Union and Exchange of Enclaves (the first Beru-
·hari case), [1960] 3 S.C.R. 250 and Ram Kishore Sen v. Union of India,
·(the second Berubari case), [1966] 1 S.C.R. 430 explained.
There is no definite .and reliable piece of evidence ·which establishes
that the disputed sectors were part of the State of Kutch and, therefore,
part of the territory of lildia.
Conflicting claims were made from time
to time by the British authorities and the Maharao of Kutch; and about
the exercise of sovereign rights over the areas now in dispute the evidence
in scrappy and discrepant. Different positions were adopted by the
officers of the Government of India according as the exigencies of a particular situation. demanded. These statements or assertions do not evidence
an existing state of affairs; they were only made to support or resist claims
then made, or to serve some immediate purpose. [305 F-HJ
Regarding the two inlets the ultimate decision of the Tribunal is
founded on considerations of expediency and not on strict determination
<Jf rights.
But the ground on which the Award is made against the claim
Jllade 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 toQ)< 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 D.ominion of India does not
Tesult in vesting of ~overeign authority over the terTitory unless the suze~
rainty of the State of Kutch is established. The Award does no more than
define on the surface of the earth a boundary which bas at all material
times remained indefinite because of the nature of the terrain, t,he shiftiμ.g
natul"e of the border of. what was called Rann, the highly discrepant and
conllicting 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 anthorities. though there were several occasions, to demarcate the bound3.ry
between Sind and the Rann of Kutch. [307 G; 208 D-EJ
CIVIL APPELLATE JURISDICTION/ORIGINAL
JURISDICTION :
Civil Appeal No. 1528 of 1968.
Appeal by special leave (rom the order of March 18, 1968
of the Gujarat 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 N0s. 343 and 294
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MAGANBHA! v. UNION (Hidayatullah, C.J.)
259
A · of 1968 and Petitions under Art. 32.of the Constitution of India
•
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for the enforcement of the fundamqntal rights.
·
1. N. Shrofj, 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. 2118 of
1968).
The petitioner appeared in person (in w.P. No. 109 of 196$).
The petitloner 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. A~timi 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.
D
No. 409 of 1968).
C. K. Daphtary, B. Sen, R. H. Dhebar and S. P. Nayar, for the
Unioh of Indi11 (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
E
of India (in W.P. No. 109 of 1968).
C. K. Daphtary, B. Sen, A. Sreedharan Nambiar, R.H. Dhebar
and S. P. Nayar, for the Union of India (in W.P. No. 409 of
1968).
'
R. H. Dhebar and S. P. Nayar, for the State of Gujarat.
F
The Judgment of HIDAYATULLAH, C.J., RAMASWAMI, MITTER
and GROVER, JJ. was delivered by HIDAYATULLAH, C.J. SHAFI, J.
delivered a separate Opinion.
Hidayatullah, 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
G
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.
H
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 Mr. Maganbhai Ishwarbhai Patel (C.A. No.
1528/68). The Gujarat High Court, 18 March, 1968, dismissed
. 260
SUPREME COURT REPORTS
(1969] 3 S.C.R.
the petition summarily and the appeal is by special leave of this
A
Court. This judgment will dispose cif 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 ceding without the approval of Parliament the areas in the Rann of Kutch
known as Kanjarkot, Chhadbet, Dharabanni, Priol V alo 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. I. N. Shroff (C.A. No. 1528/68),
Mr. A. S. Bob<le (C.A. No. 1900/68) and Mr. C. R
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 CroW1D over the States of Kutch, Santalpur,
Tharad, Suigam, Wav and J odhpur 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 pan of India. Between these two lies the Great Rann of
Kutch, Sind shutting on the North and West and the Indian mainland on the Souih 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.
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It appears that from July 1948 Diplomatic Notes were exF
changed between the two Governments with regard to the boundary
between the areas known as Gujarat and West Pakistan. The
difference led to open hostilities in April 1965. On June 30,
1965 the two Governments reached an agreement which read :
"Constitution of the Tribunal, Proceedings.
On 30 June, 1965, the Government of India and
the Government of Pakistan concluded an Agreement,
reading as follows :
Whereas both the Governments ol 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 ludo-Pakistan border;
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MAGANBHAI v. UNION (Hidayatul/ah, C.J.)
261
Whereas it is necessary that after the status quo
has been established in the af9resaid Gujarat-West
Pakistan border area, arrangements should be made for
detennination and demarcation of the border in that
area;
B
NOW, THEREFORE, the two Governments agree
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that the following. action shall be taken in regard to the
said area :
Article 1 :
There shall be an immediate cease-fire with effect
from 0030 hours GMT on 1 July 1965.
Article 2 :
On the cease fire .:
(i) All troops on both sides will immediately begin
to withdraw;
(ii) This process will be completed within seven
. day$;
(iii) Indian police may then reoccupy the post at
Chhad Bet in strength no greater than that employed at the post on 31 December 1964;
(iv) Indian a.nd Pakistan police may patrol on the
tracks on which they were patrolling prior to 1
January 1965, provided that their patrolling will
not exceed in intensity that which they were
doing prior to 1 January 1965 and during the
monsoon period will not exceed in intensity that
done during the monsoon period of 1964;
(v) If patrols of Indian and Pakistan police should
come into contact they will not interfere with
each other, and in particular will act in accordance with West . Pakistan-India
border
ground-rules agreed to-in January 1960;
(vi) Officials of the two Governments will meet immediately after the cease-fire and from time to
time th~reafter as may prove desirable in order
H
to consider whether ·any problems arise in the
~plementation of the provisions of paragraphs
( 111) to ( v) above and to agree on the settlement of any such problems.
. 262
SUPREME COURT REPORTS
[1969] 3 S.C.R.
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 ·
. a
(b)
(c)
needs to be demarcated on the ground.
Pakistan claims that the border between India
and Pakisian 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.
At discussions in January 1960, it was agreed by
Ministers of the iwo Governments that they
would each collect further data regardiilg the
Kutch-Sind boundary and that further, discus-
. sions 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 preseni and
develop their case in full.
(ii) In the event of no agreement between th£ 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 recoui:se to the Tribunal referred to in (iii) below for determination of the border in the light of their respective
claims and evidence produced before it and the
decision of the Tribunal shall be final and binding on both the parties.
(iii) For this purpose there
shall be
constituted,
within four months of the cease-fire a Tribunal
consisting of three persons, none of whom would
be a national of either India or Pakistan. One
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MAGANBHAI V. UNION (Hidayatu//ah, C.J.)
263
member shall be nominated by each Government 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
ceasefire, 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 l 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 compromis on the procedure for the demarcation
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'. T'ue parties did not confer this power by a Special Compromis even thereafter.
The case on the part of India was propounded with the aid
of map A which was a mosaic of Indian Maps B-44, B-37, B-19
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SUPREME COURT REPORTS
[ 1969] 3 s.c.R.
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 'lbserved : India claimed thac :
"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 Trijunction in the east as it appears in
the Indian Maps B-44, B-37, B-19 cmd
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 TermiA
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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, an<i 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 Pa.leis tan Map-137."
F
"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
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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 rem<.ined with regard to the boundary outside these agreements.
The Tribunal described this dispute in
the following words :
H
"From the Western Terminus, the boundary claimed
by India takes off to the north and that claimed by
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265
Pakistan to the south; and from the Eastern Terminus, the boundary claimed by India t11kes off to the
south-west while the boundary 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
States.
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, 194 7.
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 so.me of it could also be used in support of its
alternative submisdon.
Both parties agree that the Rann was not a "tribal
area" as defined in Section 311 of the Government of
India Act, 1935.
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, Piro! Valo Kun, Kanjarkot, Vighokot and Sarifbela
and these were said to be not part of the Rann. India on the
other hand staled that the Rann means the Rann lying to the
east of the veriical line and to the south of the horizontal line
~s depicted in Map A. Pakistan maintained that ibe Rann lay
:o the east of what was once known as the Khori river and that
the lands were part of Sind and referred to the sam~ as 'the delta
lands'.
L7Sup. CJ/69-18
266
sui>R.BM!l COURT REPORTS
[1969] 3 s.c.R..
The abOve in urief is the outline of the dispute as presented
to the Tribunal. Although the Award of the Tribunal is before
us ii was necessary to make !his brief mention because we are
required to 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 Award.
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
Pakistani
claim.
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 Pakistan had
m\lde out a clear title to the northern half of the area
shown in the Survey Maps as the 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 l~arned Chairman."
The Tribunal thereupon ruled thus :
"The alignment of the boundary 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
on 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 represenied by approximate straight lines."
The Chairman then indicated the exact location of the boun-
<lary 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 ki Bazar. It thus follows
Erskine's Survey. Thereafter hstead of following the mainland
it dips fo the South East just South of Sadariajagot and then
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MAGANBJ!AI V. UNION (Hidayatullah, C.J.)
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goes up North West to join the mainland and to follow the
boundary symbols.
In the tria.ngle so formed
is situated the
Kanjarkot area which is the first limb of the disputed territor)'
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 Ea;t to a point a little norti1 of the 24th
parallel and runs parallel to it thus embracing .iJ!iarabaU: Jnd
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 Sir Creek to Khori
Creek has not been in dispute.
In drawing up the border the Tribunal based itself on much
historical matter and old maps.
In the opinions of Judge Ales
Behler and the Chairman
(Ambassador Entezam concurring
with the Chairman) this historical material has been differently
interpreted but we are not concerned with it.
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 rwo inlets on
the fwo sites of Nagar Parkar. In this connection he observed :
"The rwo deep inlets on either side of Nagar
Parkar will constitute the territory of Pakistan.
Already 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 ~ 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. B. 9).
2611
SUPllEME COURT REPORTS
[1969] 3 S.C.R.
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 western 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 ihe camel
track is indicated on Indian Map B-34 to reach the
edge of the Rann; that point is indicated as point "M"
on Map C.