# UNION OF INDIA AND ORS v. SUKUMAR SENGUPTA AND ORS

- **Citation:** [1990] 3 S.C.R. 24
- **Court:** Supreme Court of India
- **Decided:** 1990-05-03
- **Bench:** Sabyasachi Mukharji, M.H. Kania, K. Jagannatha Shetiy, K.N. Saikia, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-ors-v-sukumar-sengupta-and-ors-10850
- **Pages:** 31

## Headnote

Constitution of India, 1950: Articles 1, 3, 368 and Constitution
;.·
(Ninth Amendment) Act, 1960-Agreements of 1974 and 1982Y
C
Implementation of-Teen Bigha-Whether involves cession of Indian
territory
to
Bangladesh-Sovereignty
over
Dahagram
and
Angarpota-Whether arises.
The Indian Independence Act, 1947 had set up two independent
dominions known as 'India' and 'Pakistan'. A Boundary Commission
D
was appointed to determine the boundaries of the two dominions. As a
result of its Award, certain areas of India became, after the partition,
enclaves in East Pakistan. Similarly, certain East Pakistan enclaves
were found in India. Dehagram and Angarpota were two such Pakistani
enclaves in India.
E
F
In view of the Award, Berubari Union No. 12 was treated as part
of the Province of West Bengal. Near about 1952, Pakistan· alleged that
under the Award the Berubari Union should really have formed part of
East Bengal. Eventually, in 1958 the Prime Ministers of India and
Pakistan entered into an agreement settling certain boundary disputes.
The agreement inter alia provided for the division of Berubari Union
No. 12 between India and Pakistan and exchange oflndian enclaves in
Pakistan and Pakistan enclaves in India.
Donbts arose regarding the implementation of the 1958
agreement. Therefore, in exercise of the powers conferred upon him by
clause ( 1) of Article 143 of the Constitution, the President of India
G referred the matter to the Supreme Court.
In the light of the opinion rendered by the Supreme Court in Re:
The Berubari Union and Exchange of Enclaves, [1960] S.C.R. 3 250, the
Constitution (Ninth Amendment) Act, 1960 was passed to give effect to
'
r
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the transfer of the territories as envisaged in the 1958 agreement.
,~
24
I
U.0.1. v. SUKUMAR SENGUPTA
25
• By an official notification, 17th January 1961 had been appointed
as the day for the transfer of the territories of India by way of exchange
with the territories of Pakistan in the western region. No further
appointed day was notified so far as the eastern border of India was
concerned.
A
In 1966, writ petitions challenging the validity of the transfer of
B
territories as stipulated in the Ninth Amendment were dismissed by this
Court in Ram Kishore Sen & Ors. v. Union of fodia, l1966]
1 S.C.R. 430.
On or about the 16th May, 1974 an agreement was entered into
between the Prime Ministers of India and Bangladesh. This agreement
inter alia provided that India will retain half of Berubari Union No. 12,
which under the 1958 agreement was to be transferred to Pakistan, and
in exchange Bangladesh will retain the Daha~ram and Angarpota
enclaves. The agreement further provided that India will lease in
perpetuity to Bangladesh a small area near 'Tin Bigha' for the
purpose of connecting Dahagram and Angarpota with Panbari Monza
of Bangladesh. The 1974 agreement, however remained unimple-
~ented.
Thereafter, in October 1982 an u11derstanding was reached
between the two governments in respect of 'lease in perpetuity' by
India of the said area near 'Tin Bigha' to enable the Bangladesh government to exercise her sovereignty over Dabagram and Angarpota. It was
further agreed that the 1982 agreement would be an integral partofthe
earlier agreement of 197 4. It was also agreed that the sovereignly over
the leased area shall continue to vest in India.
Clause 9 of the 1982 ~greement provided that India would have no
jurisdiction over Bangladesh nationals in respect of any offence
committed in the area, and the same shall be dealt with by the
Bangladesh law enforcing agency only.
In 1983, Writ Petitions were tiled in the Calcutta High Court
challenging the validity of the agreement. The learned Single Judge
dismissed the writ petitions (Sugandhra Roy v. Union of India, A.I.R.
1983 Cal. 483). The learned Single Judge held that (i) Ninth Amendment in so far as it related to exchange of the enclaves in eastern India
had not come into being; (ii) implementation of the agreements of 1974
and 1982 did not in

## Text

_Characters 0–39,034 of 75,245. This is a partial read: ask again with offset=39034 for what follows._

A
B
UNION OF INDIA AND ORS.
v.
SUKUMAR SENGUPTA AND ORS.
MAY 3, 1990
[SABYASACHI MUKHARJI, CJ., M.H. KANIA,
K. JAGANNATHA SHETIY, K.N. SAIKIA AND
S.C. AGRAWAL, JJ.]
Constitution of India, 1950: Articles 1, 3, 368 and Constitution
;.·
(Ninth Amendment) Act, 1960-Agreements of 1974 and 1982Y
C
Implementation of-Teen Bigha-Whether involves cession of Indian
territory
to
Bangladesh-Sovereignty
over
Dahagram
and
Angarpota-Whether arises.
The Indian Independence Act, 1947 had set up two independent
dominions known as 'India' and 'Pakistan'. A Boundary Commission
D
was appointed to determine the boundaries of the two dominions. As a
result of its Award, certain areas of India became, after the partition,
enclaves in East Pakistan. Similarly, certain East Pakistan enclaves
were found in India. Dehagram and Angarpota were two such Pakistani
enclaves in India.
E
F
In view of the Award, Berubari Union No. 12 was treated as part
of the Province of West Bengal. Near about 1952, Pakistan· alleged that
under the Award the Berubari Union should really have formed part of
East Bengal. Eventually, in 1958 the Prime Ministers of India and
Pakistan entered into an agreement settling certain boundary disputes.
The agreement inter alia provided for the division of Berubari Union
No. 12 between India and Pakistan and exchange oflndian enclaves in
Pakistan and Pakistan enclaves in India.
Donbts arose regarding the implementation of the 1958
agreement. Therefore, in exercise of the powers conferred upon him by
clause ( 1) of Article 143 of the Constitution, the President of India
G referred the matter to the Supreme Court.
In the light of the opinion rendered by the Supreme Court in Re:
The Berubari Union and Exchange of Enclaves, [1960] S.C.R. 3 250, the
Constitution (Ninth Amendment) Act, 1960 was passed to give effect to
'
r
H
the transfer of the territories as envisaged in the 1958 agreement.
,~
24
I
U.0.1. v. SUKUMAR SENGUPTA
25
• By an official notification, 17th January 1961 had been appointed
as the day for the transfer of the territories of India by way of exchange
with the territories of Pakistan in the western region. No further
appointed day was notified so far as the eastern border of India was
concerned.
A
In 1966, writ petitions challenging the validity of the transfer of
B
territories as stipulated in the Ninth Amendment were dismissed by this
Court in Ram Kishore Sen & Ors. v. Union of fodia, l1966]
1 S.C.R. 430.
On or about the 16th May, 1974 an agreement was entered into
between the Prime Ministers of India and Bangladesh. This agreement
inter alia provided that India will retain half of Berubari Union No. 12,
which under the 1958 agreement was to be transferred to Pakistan, and
in exchange Bangladesh will retain the Daha~ram and Angarpota
enclaves. The agreement further provided that India will lease in
perpetuity to Bangladesh a small area near 'Tin Bigha' for the
purpose of connecting Dahagram and Angarpota with Panbari Monza
of Bangladesh. The 1974 agreement, however remained unimple-
~ented.
Thereafter, in October 1982 an u11derstanding was reached
between the two governments in respect of 'lease in perpetuity' by
India of the said area near 'Tin Bigha' to enable the Bangladesh government to exercise her sovereignty over Dabagram and Angarpota. It was
further agreed that the 1982 agreement would be an integral partofthe
earlier agreement of 197 4. It was also agreed that the sovereignly over
the leased area shall continue to vest in India.
Clause 9 of the 1982 ~greement provided that India would have no
jurisdiction over Bangladesh nationals in respect of any offence
committed in the area, and the same shall be dealt with by the
Bangladesh law enforcing agency only.
In 1983, Writ Petitions were tiled in the Calcutta High Court
challenging the validity of the agreement. The learned Single Judge
dismissed the writ petitions (Sugandhra Roy v. Union of India, A.I.R.
1983 Cal. 483). The learned Single Judge held that (i) Ninth Amendment in so far as it related to exchange of the enclaves in eastern India
had not come into being; (ii) implementation of the agreements of 1974
and 1982 did not involve cession of any Indian territory to Bangladesh;
. (iii) no exclusive or legal possession of Tin Bigha was being transferred
c
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G.
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26
SUPREME COURT REPORTS
[ 1990] 3 S.C.R.
A to Bangladesh; (iv) there was no question of transfer of sovereignty of
India wholly or partially in respect of the said area; (v) certain
privileges only had been conferred on Bangladesh and its nationals
under the said agreement which otherwise they would not have; (vi) as
Dahagram and Angarpota would remain as parts of Bangladesh territory, the agreements were necessary to enable Bangladesh to exercise its
B sovereignty in full over the said enclaves; and (vii) in spite of the said
agreements India would retain sovereignty, ownership and control over
Tin Bigha.
Regarding clause 9 of the 1982 agreement, the learned Single
Judge held that the conferment of this power under the agreement to
Bangladesh and abdication of any such power by India, by itself, did
C not amount to transfer of sovereignty in respect of the area. The learned
Single Judge, however, noted that merely by virtue of the agreement
and without any amendment of the existing Indian Jaw it might not be
legally possible to take away existing jurisdiction of the Jaw enforcing
agencies of India or the Indian courts.
D
An appeal was filed before the Division Bench. It was contended
before the Division Bench that (i) the 1974 agreement speclt1cally provided that the same would b.e suitably retified but it had not been
ratified; (ii) in the absence of any ratification of the agreement of 1974,
India and Bangladesh conld not enter into the subsequent agreement in
E 1982 on the basis of the agreement of 1974; (iii) by reason of the agreement of 1958 between India and Pakistan, which was sanctioned by the
Ninth amendment to the constitution, there was automatic exchange of
the Pakistani enclaves in the eastern part of India with the Indian
enclaves in eastern Pakistan; (iv) neither India nor Bangladesh had
formally terminated the treaty of 1958 and as such in so far as the
F
provJsions of the said agreement of 1958 concern Berubari union No. 12
and the Cooch Behar enclaves, including Dahagram and Angarpota,
they could not be given a go-by in the manner purported to have been
done, and a further amendment to the Constitution was necessary; and
(v) the use of the expression 'residual jurisdiction' in clause 9 of the
agreement of 1962 indicated that Indian only retained residnal
G sovereignty over the area and the defacto and real sovereignty in the
area had been surrendered to Bangladesh.
The Division Bench repelled these contentions. The Bench however was of the view that the agreements of 1974 and 1982 providing for
exchange of territories would have to be noted in the relevant schedules
J-I to the Constitution before any appointed day could be notified in .
\
U.0.L v. SUKUMAR SENGUPTA
27
respect of the territories to be transferred to Bangladesh. According to
the Division Bench, this was necessary in order to retain Berubari in
India.
Disposing of the appeal, this Court,
HELD: ( 1) The Division Bench came to the correct conclusion that
in so far as the eastern border of India was concerned, the Ninth
Constitutional amendment had not become part of the Constitution as
no appointed day had been notified, and in that view of the matter, the
decision to allow Bangladesh to retain Dahagram and Angarpota under
the 1974 and 1982 agreements did not amount to cession of Indian
territory in favour of Bangladesh. [45A-B I
-
A.K. Roy, etc. v. Union of India & Anr., [1982] 2 S.C.R. 272;
Maganbhai Ishwarbhai Patel v. Union of India & Anr., [1969] 3 S.C.R.
254, referred to.
A
B
c
(2) The Division Bench was pre-eminently right in arriving at the
D
conclusion that there was no automatic transfer of Dahagram and
Angarpota to India under the 1958 agreement in the absence of a
110tified appoin .• 'fl day, and consequently both defacto and dejure these enclaves remained part of East Pakistan and subsequently Bangladesh. I 44G-H]
(3) The Division Bench had held that the agreements of 1974 and
E
1982 did not amount to cession of territory or abandonment of
sovereignty. If that is the position, no constitutional amendment was
required for the arrangements entered into either by the agreement of
1974 or 1982. The Division Bench was therefore in error in expressing a
contrary view. [44B-C]
(4) In that view of the matter, the agreements of 1974 and 1982
did not require to be suitably notified or included in the official
gazettee. Therefore, there was no cause to direct the legislature to
amend or pass suitable laws. l52B]
F
State of Himachal Pradesh v. Urned Ram Sharma, [1986] 2
G
S.C.C. 68; State of Himachal Pradesh v. A parent of a Student of Medical College, Simla & Ors., [1985] 3 S.C.R. 676, referred to.
(5) The expression 'lease iit perpetuity' has to be understood in
the context of and with reference to the objects of the agreement. The
object of the lease was to allow access to Bangladesh to Daba~ram and
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28
SUPREME COURT REPORTS
[1990l 3 S.C.R.
A Angarpota for the purpose of exercise of her sovereignty over and in the
said areas •. Having examined the rights in the agreements, these do not
.,;::
amonnt to lease or surrender of sovereignty as understood in the internationallaw. [47B-D]
B
Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R.
368, referred to.
(6) The Division Bench rightly held that the recital in a deed
conld not operate as an estoppel against the specific terms and conditions thereof. On a construction of the agreements, the Division Bench
came to the correct conclusion that the agreements of 197 4 and 1982
C together in their entirety must be judged. [47F]
(7) An agreement between two countries might be ratified not
only by a -subsequent formal agreement but by actual implementation or
by conduct, and read properly, the subsequent agreement did ratify the
0
previous agreement. [46G-H]
E
(8) The Division Bench rightly held that under the said
agreements, specific and
limi~ed rights were being granted to
Bangladesh. Such rights were not exclusive and the aggregation thereof
would not amount to a lease, as is commonly understood in favour of
Bangladesh. [49D-E]
(9) Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve the purpose in favour of and in the
interest of Bangladesh. These are, however, self-imposed restrictions.
On a proper constrnction of the agreements of 1974 and 1982 and the
individual clauses, it cannot he said that as a result of the said agreeF
ment, India had surrendered its sovereignty over the said area of Teen
Bigha in favour of Bangladesh or that Bangladesh has become the
sovereign over the said territory to the exclusion oflndia. [49G-H]
(JO) Sovereignty is a quality of right. It is a bundle of rights. It
depends on the facts and the circumstances of each case. Apart from
G
anything else, the specific clause in the agreement of 1982 that
sovereignty over the area shall continue to vest in India stands in the
way of a contrary construction. [SOA-B J
Panama Canal's case Hudson Cases & Ors. Materials on internaH
tional Law, 3rd Edition, 1951 pp 222-3, distingnished.
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U.0.1. v. SUKUMAR SENGUPTA
29
(11) 'Sovereignty' has been defmed as "the snpreme authority' in
an independent political society. It is essential, indivisible and
illimitable. However, it is now considered and accepted as both
divisible and !imitable. Sovereignty is limited externally by the
possibility of a general resistance. Internal soverejgnty is paramount power over all action, and is limited by the nature of the power
itself. [41E-F]
( 12) In the present and modern context sovereignty has and must
have a more restrictive meaning than it had in the earlier centuries
when on the emergence of individual national States, no limits on the
power of States, were acknowledged. Any State in the modern times has
to acknowledge and accept customary restraints on its sovereignty
inasmuch as no State can exist independently and without reference to
other States. Under the general international law the concept of interdependence of States bas come to be accepted. Ev.en without the said
agreements of 1974 and 1982, so long as Dahagram and Angarpota
remain part of Bangladesh, the latter under the general international
law and customs would have a right to access to the said enclose through
the territory oflndia. [SOC-E]
( 13) Amicable and peaceable settlement of boundary disputes are
in the interests of the international community. The older and absolute
ideas of sovereignty and independence has thus necessarily to be
modified in the dawn of the 21st century. A perpetual right to passage
and other incidental rights given to Bangladesh for the limited purpose
for exercising the sovereignty over her own two enclaves within the
territory of India and /or if imposed restrictions on itself by India does
not tantamount to transfer of interests in India. [52E-F J
A
B
c
D
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CIVIL APPELLA1E JURISDICTION: Civil Appeal Nos. 2833-35
F
of 1987.
From the Judgment and Order dated 19. 9 .1986 of the Calcutta
High Court in A.F.O. No. 102 of 1984 in M.A. Nos. 3036 and 3062 of
1983.
Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional
Solicitor General, Gopal Subramanium, Ms. A. Subhashini an\! P.
Parmeshwaran for the Appellants.
f
S.S. Khanduja, Y.P. Dhingra and. B.K. Satija lfor the
G I
Respondents.
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SUPREME COURT REPORTS
(19901 3 S.C.R.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, CJ. This appeal by special leave
arises from the judgment and order of the Division Bench of the High
Court of Calcutta dated 19th September, 1986.
The Indian Independence Act, 1947 (hereinafter referred to as
'the Act') was passed by the British Parliament. This Act came into
force on and from 15th Augusl,.1947, which was the appointed day and
under the Act, as from the appointed day, two independent dominions
were to be set up in place of the existing India known, respectively as
'India' and 'Pakistan'. Two independent dominions were set up in
place of the existing Indian Union. Section 3(1) of the Act provided,
inter alia, that as from the appointed day the Province of Bengal as
constituted under the Government of India Act, 1935 shall cease to
exist and in lieu thereof two new provinces known respectively as 'East
Bengal' and 'West Bengal' shall be constituted under section 3(3) of
the Act. Under section 3(3)' of the Act, it was provided that the
boundaries of the new provinces as aforesaid shall be such as may be
determined whether before or after the appointed day by the award of
a Boundary Commission appointed or to be appointed by the Governor General in that behalf. On 30th June, 1947, the Governor General
made an announcement that it had been decided that the Province of
Bengal and Punjab shall be partitioned. Accordingly, a Boundary
Commission was appointed, inter alia, for Bengal consisting of Sir
Cyril Radcliffe as the Chairman. So far as Bengal was concerned, the
material terms of reference provided that the Boundary Commission
should demarcate the boundaries of the two parts of Bengal on the
basis of, inter alia, the contiguous areas of Muslims and non-Muslims.
The Commission held its enquiry and made an award on August 12,
1947, i.e., three days before the appointed day. The Chairman gave his
decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri i.n para 1 ofAnnexure 'A' which
provided that a line was to be drawn in a particular manner. The
Award directed that the District of Darjeeling and so much of the
District of Jalpaiguri as lies north of the said line shall belong to West
Bengal but the Thana of Phatgram and any other portion of Jalpaiguri
. District, which lies to the East or South, shall belong to East Bengal.
Problem arose subsequently regarding the Berubari Union No. 12
Which was situated in the Police Station Jalpaiguri in the District of
J alpaiguri, which was at the relevant time a part of Raisahi Division of
Bengal. After the partition, Berubari Union formed part of the State
of West Bengal and had been governed as such. The Constitution of
·-
/
U.0.L v. SUKUMAR SENGUPTA [MUKHARJI, J.[
31
lndia was declared to be passed on 26th November, 1949. As provided
by Article 394 of the Constitution, only certain Articles came into
force as from that date and the remaining provisions came to be in
force from January 26, 1950. Article 1 of the Constitution provided
that India, that is, Bharat shall be a Union of States and that the States
and the territories thereof shall be the States and their territories
specified in Parts A, B and C of the First Schedule. West Bengal was
shown as one of the States in Part A. It was further provided that the
territories of the State of West Bengal shall comprise the territory
which immediately before the commencement of the Constitution was
comprised in the Province of West Bengal. As already pointed out in
view of the said award, Berubari Union No. 12 was treated as part of
the Province of West Bengal and as such has been treated and governed on that basis. Subsequently, certain boundary disputes arose
between India and Pakistan and a Tribunal was set up for the adjudication and final decision of the said disputes. However, the same had
nothing to do with the present case and the question of Berubari
Union or the Cooch Behar enclaves or Pakistani enclaves in the east
was not the subject-matter of the same. But the said question was
raised by the Government of Pakistan in the year 1952. Admitted
position is that during the whole of this period, the Berubari Union
continued to be in the possession of the Indian Union and was governed as part of West Bengal. Near about 1952, Pakistan alleged that
under the Award, the Berubari Union should really have formed part
of East Bengal. In September, 1949, Cooch Behar had become part of
the territory of India and was accordingly included in the list of Part C
States at Serial No. 4 in the First Schedule to the Constitution. On the
31st December, 1949, the States Merger (West Bengal) Order, 1949,
was passed. It was provided in the ~aid order, inter alia, that Indian
state of Cooch Behar would be administered in all respects as if it was a
part of the Province of West Bengal, on and from the 1st January,
1950, thereby the erstwhile State of Cooch Behar was merged with
West Bengal and began to be governed as if it was a part of West
Bengal. The State of Cooch Behar was thereafter taken out of the list
of Part C States, in the First Schedule to the Constitution and added to
West Bengal in the same Schedule. Certain areas which formed part of
the territories of the former Indian State of Cooch Behar and which
had subsequently become part of the territories of India and then of
West Bengal became after the partition enclaves in Pakistan. Similarly, certain Pakistan enclaves were found in India. Dahagram and
Angarpota (now Bangladesh), were the Pakistani enclaves in India.
The Prime Ministers of two countries entered into an agreement settling certain disputes including the Berubari Union and the enclaves iI).
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32
SUPREME COURT REPORTS
[1990] 3 S.C.R.
the East Pakistan in 1958. Two items in Para 2 of the said Agreement
were items 3 and 10. These were as follows:
"Item No. 3:-Berubari Union No. 12
'This will be so divided as to give half the area to Pakistan,
the other half adjacent to India being retained by India.
The Division of Berubari Union No. 12 will be horizontal,
starting from the north-east comer of Debiganj Thana. The
division should be made in such a manner that the CoochBehar enclaves between Pachagar Thana of West Bengal
will remain connected as at present with Indian territory
and will remain with India. The Cooch-Behar Enclaves
lying between Boda Thana of East Pakistan and Bernbari
Union No. 12 will be exchanged along with the general
exchange of enclaves and will go to Pakistan."
Item No. JO:-"Exchange of old Cooch-Behar Enclaves in
Pakistan and Pakistan Enclaves in India without claim to
compensation for extra area going to Pakistan, is agreed
to."
Subsequently, there was doubt as to whether the implementation
of the 1958 Agreement relating to Bernbari Union and the exchange of
E
Enclaves requires any legislative action either by way of a suitable law
of the Parliament relatable to Article 3 of the Constitution or in
accordance with the provisions of Article 368 of the Constitution or
both. Accordingly, in exercise of the powers conferred upon him by
clause (1) of Article 143 of the Constitution, the President of India
referred the following three questions, to this Court for consideration:
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(1) Is any legislative action necessary for the implementation of the agreement relating to Berubari Union?
(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 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 the exchange of Enclaves or is an amendment of the
H
Constitution in accordance with Art. 368 of the Constitution
/
U.0.1. v. SUKUMAR SENGUPTA IMUKHARJI, J.J
33
necessary for the purpose in addition or in the alternative?
This Court answered the questions as follows. So far as question
no. 1 was concerned, it was answered in affirmative. So far as second
question was concerned, this Court answered it by saying that a law of
Parliament relatable to Art. 3 of the Constitution would be incompetent and a law of Parliament relatabie to Art. 368 of the Constitution is
competent and necessary and also by saying that a law of Parliament
relatable to both Article 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 lines
under Art 368 and then follow it up with a law relatable to the
amended Art. 3 to implement the agreement. Question No. 3 was also
answered as aforesaid. The said decision is reported in Re. The
Berubari Union and Exchange of Enclaves [1960) SCR 3 250. Ninth
Amendment to the Constitution was made thereafter. The Objects
and Reasons of the Constitution (Ninth Amendment) Act, 1960 stated
that th~ Inda-Pakistan agreements dated September 10, 1958, October
23, 1959, and January 11, 1960, which settled certain boundary disputes relating to the borders of the State of Assam, Punjab and West
Bengal, and the Union Territory of Tripura involved transfer of certain territories to Pakistan after demarcation. The Act amended the
Constitution to give effect to the transfer of those territories. After
setting out the title of the Act, which was called the Constitution
(Ninth Amendment) Act, 1960, it provided the definitions and amendments to the First Schedule to the Constitution. In 1966, writ petitions
were filed challenging the validity of the proposed demarcation as also
raised the question as to whether the proposed transfer of Berubari
Union would result in deprivation of citizenship and property without
compensation. The writ petitions were dismissed eventually by this
Court. The said decision is reported in Ram Kishore Sen & Ors. v.
Union of India & Ors., [1966) 1SCR430.
In 1971, a sovereign independent State known as 'Bangladesh'
came into existence which comprised of the territory previously known
A
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as East Pakistan or East Bengal. On or about the 16th May, 1974, an
agreement was entered into by and between the Prime Ministers of
G
India and Bangladesh regarding the land boundary and related matters
including transfer of enclave's. Article 1 para 12 of the said Agreement
provided that Indian enclaves in Bangladesh and Bangladesh enclaves
in India should be exchanged expeditiously excepting the enclaves
mentioned in para 14 without claim to compensation for the additional
area, going to Bangladesh. Thereafter, an understanding was reached
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SUPREME COURT REPORTS
I 1990] 3 S.C.R.
in October, 1982, between the two Governments m connection with
the "lease in perpetuity" in terms of item 14 of Article 1 of the 1974
Agreement. In 1983, writ petitions were filed in the Calcutta High
Court. In September, 1983, the learned Single Judge of the Calcutta
High Court dismissed the writ petitions holding, inter alia, that
the implementation of the 1974 .and 1982 agreements did not involve
cession of Indian territory to Bangladesh. The said judgment in
Sugandha Roy v. Union of India & Ors., is reported in AIR 1983 Cal.
at p. 483. It was held therein that there being no Gazette Notification
fixing any "appointed day" within the meaning of Ninth Constitution
Amendment in respect of the Eastern India, particularly the Berubari
Union and the Pakistani enclaves, and no Gazette Notification having
yet been issued, it was clear that 9th amendment so far as it related to
exchange of the enclaves in Eastern India has not come into effect by
virtue of the said Ninth Amendment in view of the fact that it was
expressly provided in the said 9th Amendment that only from the
"appointed day" the Schedule to the Constitution shall be amended
and there being no "appointed day" in respect of the territories in th~
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Eastern India, the First Schedule to the Constitution remained unamended in so far as eastern India is concenred particularly the
Berubari Union and the enclaves of the Dahagram and Angarpota
and, as such, neither in fact nor in law there was any accession to India
in respect of the two enclaves and they remained part of Pakistan (now
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Bangladesh) as they were before in spite of 1958 Nehru-Noon Agreement and Ninth Amendment. Therefore, the implementation of the
1974 and 1982 Agreements which provided, inter alia, that the two
enclaves would not be exchanged would not amount to cession of any
Indian territory which would require any Constitutional amendment.
Even if one proceeded on the basis of the 1958 agreement entered into
by India and Pakistan so far as it related to the territories of eastern
India remained effective and valid after the emergence of Bangladesh.
It was open to India and Bangladesh to enter into a fresh treaty
modifying the 1958 agreement and that was actually what had
happened in the present case. India and Bangladesh had, by the said
1974 and 1982 agreements and to the extent indicated therein tenninated and/or modified the earlier Treaty of 1958 in respect of inter
alia, southern portion ofBerubari Union and the two enclaves in question. In such a case, even if it could be said that it was the obligation
of the Government of India to make endeavour to foster respect for
the 1958 treaty as contemplated by Article 51(c) that did not prevent
the Government of India from entering into the 1974 and 1982 agreements and modifying the earlier treaty particularly having regard to
the fact that the 1958 agreement so far as it related to transfer of
U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.]
35
southern portion of Berubari Union and the exchange of enclaves in
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question was not given effect to any time and the Ninth Amendment to
that effect was never brought into force. The Court, further, held
that when by 1974 agreement read with 1982 agreement Bangladesh
Government had been given the facility of using the Indian area
known as "Teen Bigha" in the manner contemplated by those agreements to be discussed in detail later, the implementation of those two
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agreements would not involve cession of any territory to Bangladesh in
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respect of Teen Bigha. Not merely that no exclusive possession of that
'---(
area was sought to be transferred to Bangladesh and no legal possession at all was being transferred. There was no question of transfer of
sovereignty, wholly or partially, in respect of the said area. What had
merely been done was to enable the Government of Bangladesh and c
its nationals to exercise certain rights in respect of the said area,
i.e., Teen Bigha, which otherwise they would not havP. been entitled to
do. That was being so allowed because instead of exchange of these
enclaves along with others as contemplated by 1958 Agreement, it was
a~reed that these two enclaves would remain as part of Bangladesh.
The Court, further, held that it was clear that the reason was that in
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spite of the 1958 agreement and in spite of the Ninth Amendment,
which had not been given effect to, the southern portion of Berubari
Union had to be retained by India. As these two enclaves were to
remain as part of Bangladesh territory, these two agreements had
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made some provisions to enable Bangladesh to exercise its sovereignty
in full over these two enclaves. This is also clear by 1982 agreement,
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the Court held. Thus, the imolementation of these two agreements, so
far as Teen Bigha was concerned,. did not amount to cession of the said
---
territory or transfer of sovereignty in respect of the same and did not
---.,
require any constitutional amendment.
There was an appeal before the Division Bench of the High
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Court. The Division Bench referred to the relevant authorities and the
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interpretation of 1974 and 1982 agreements made by the learned Single
Judge which were not .disputed before the Division Bench. The Division Bench in judgment under appeal affirmed the decision 0f the
learned Single Judge. The findings and interpretation of the agreements of 1974 and 1982 were also not disputed before us. We are also
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of the opinion that that is the correct position in law and on facts.
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As mentioned hereinbefore, on or about 16th May, 1974, an
agreement was entered into by and between Government of India and
the Government of the People's Republic of Bangladesh. The said
agreement was signed by late Smt. Indira Gandhi, as the then Prime
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Minister of India for and on behalf of the Government of India and
Sheikh Mujibar Rehaman, the then Prime Minister ofBangladesh,
signed the said agreement for and on behalf of the Government of
People's Republic of Bangladesh. It was recorded in the preamble of
the agreement that the same concerned the demarcation of the land
boundary between India and Pakistan and related matters, and that
the two Governments were aware that friendly relations were existing
between the two countries and that it was desired to dMine the
boundary more accurately at certain points and to complete the
demarcation thereof. Items 12 and 14 of Article 1 of the Agreement
relevant to the proceedings before us, as mentioned before, were as
follows:
"Item No. 12:-
The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim
to compensation for the additional, area going to
Bangladesh."
Item No. 14:-
"lndia will retain the southern half of south Berubari Union
No. 12 and the adjacent enclaves, measuring an area 2.64
square miles approximately, and in exchange Bangladesh
will retain the Dahagram and Angarpota ·enclave. India
will lease in perpetuity to Bangladesh and area of approximately 178 metres x 65 metres near 'Tin Bigha' to connect
Dhagram with Panbari Mouza (S. Patram) of Bangladesh."
Article 5 provided that the agreement shall be subject to notifica-
-'..
tion by the Government of India and Bangladesh and Instruments of
rectification shall be exchanged as early as possible. It may,
however, be stated as was noted by the Division Bench of the Calcutta
High Court that the agreement dated 11th May, 1974 was also not
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implemented. Subsequently, letters passed between the Ministry of
Foreign Affairs, Government of Bangladesh and the Ministry of External Affairs, Government of India, both dated the 7th October, 1982
in which it was recorded that with reference to the earlier agreement
?---
between Government of Bangladesh and the Government of India
concerning the demarcation of land boundary between the two
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countries, signed on the 16th May, 1974, the following understanding
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37
had been reached between the two Governments in respect of lease in
perpetuity by India of the said area of 178 metres x 85 metres near
'Teen Bigha' to connect Dahagram with Mouza Panbari in Bangladesh.
The understanding recorded was as follows:
"Clause 1:-
"The lease in perpetuity of the aforementioned area shall
be for the purpose of oonnecting Dahagram and Angarpota
with Panbari Mouza (P.S. Patgram) of Bangladesh to
enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota."
Clause2:-
"Sovereignty over the leased area shall continue to vest in
India. The rent for the lease area shall be Bangladesh Re.1
(Bangladesh Taka one) only per annum. Bangladesh shall
not however be required to pay the said rent and Government of India hereby waives its right to charge such rent in
respect of the leased area."
Clause3:-
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"For the purposes stated in para 1, Bangladesh shall have
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undisturbed possession and use of the area leased to her in
perpetuity."
Clause4:-
"Bangladesh Citizens including Police, Para Military and.
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Military personnel along with their arms, ammunition
equipment and supplies shall have the right of free and
unfetttered movement in the leased area and shall not be
required to carry passports or travel documents of any
kind. Movement of Bangladesh goods through the leased
area shall also be free. There shall be no requirement of
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payment of customs duty tax or levy of any kind whatsoever or any transit charges.
Clause5:-
"Indian citizens including police, par Military and
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SUPREME COURT REPORTS
[1990] 3 S.C.R.
Military personnel along with arms ammunition equipment
and supplies shall continue to have right of free and unfettered movement in the leased area in either direction.
Movement of Indian goods across the leased area shall also
be free. For purpose of such passage the existing road running across it shall continue to be used. India may al;;D
build a road above and or below the surface of the leased
area in an elevated or subway form for her exclusive use in
a manner which will not pre ju dice free and unfettered
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movement of Bangladesh citizens and goods as defined in
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para 1and4 above.
Clause 6:-"The two Governments shall co-operate in
placing permanent market along the parameters of the
leased area and put up fences where necessary."
Clause7:-
"Both India and Bangladesh shall have the right to lay
cables, electric lines, water and sewerage pipes etc. over or
under the leased area without obstructing free movement
of citizens or goods of either country as defined in parts 4
and5 above.
Clause8:-
"The Modalities for implementing the terms of the lease
will be entrusted to .the respective Deputy Commissioners
of Rangpur (Bangladesh) and Cooch Behar (India). In case
of Differences, they refer the matter to their respective
Governments for resolution.
Clause 9:-"In the event of any Bangladesh/Indian national
being involved in an incident in the leased area, constituting an offence in law, he shall be dealt with by the respective law enforcing agency of his own country, in accordance
with its national laws. Ia the event of an incident in the
leased area involving nationals of both countries the law
enforcing agency on the scene of the incident will take
necessary steps to restore law and order. At the same time
immediate steps will be taken to get in track with the law
enforcing agency of the other country. In such cases, any
Indian national apprehended by a Bangladesh law enforc-
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U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.]
39
ing agency shall be handed over forthwith to the Indian
side and Bangladesh national apprehended by an Indian
law enforcing agency shall be handed over forthwith to the
Bangladesh side. India will retain residual jurisdiction in
the leased area."
It was further confirmed by the letters that the same would continue as an agreement between the two Govermnents and would be an
integral part of the earlier agreement of 1974 concerning the demarcation of land boundary between India and Bangladesh and other related
matters.
Construing clauses 2 and 3 of the agreement of 1982, the learned
Single Judge in the Calcutta High Court in the judgment under appeal
had held that there was no question of lease or exclusive possession of
Bangladesh of the said area. The undisturbed possession and use of the
said area granted to Bangladesh under the said agreement of 1982 had
to be read in the background of the purpose of the agreement, namely,
connecting Dahagram and Angarpota with Panbari Mouza of Bangladesh to enable the Bangladesh Government to exercise sovereignty
over Dahagram and Angarpota. The learned Single Judge had further
held that such undisturbed possession and use did not mean exclusive
possession but merely meant that there would be no interference with
the exercise of rights conferred by the agreement on Bangladesh
Government and its nationals. The learned Single Judge had held that
no transfer of possession of the area was contemplated under the
agreement.
Construing clause 9 of the agreement, the learned Single Judge
had held that under the said clause where persons were involved in any
criminal offence in the said area, if they were all Indian nationals, the
matter would be taken up by the Indian law enforcing agency. If the
same involved only Bangladesh nationals the same would be dealt with
by the Bangladesh law enforcing agency only. But where both Bangladesh and Indian nationals were involved in any incident, the law enforcing agency of each State would take up the matter to the exclusion
of the other. The learned Single Judge had held that the said clause
conferred certain important rights to B'angladesh and took away some
important rights of the Government of India, its law enforcing
agencies, the courts in India and Indian citizens. At present, the law
enforcing agencies of India and the Indian Courts alone had exclusive
jurisdiction in respect of such matters. The learned Single Judge had
held that if the agreement was implemented the existing Indian law
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l 1990] 3 S.C.R.
and the machinery for enforcing such law would not be available in the
area so far as B_angladesh nationals were concerned. India would have
no jurisdiction over Bangladesh nationals in respect of any offence
committed in the area. The learned Single Judge, however, held that
conferment of this power under the agreement to Bangladesh and
abdication of any such power by India, by itself did not amount to
transfer of sovereignty in respect of the area.