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TMI Blog1969 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... spose 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sador 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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, 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 Act, 1935. Each party states that the boun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Map C. Between Points L and M , the boundary shall be a straight line. The boundary will cross the eastern inlet at its nar-rowest 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 tong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oore, 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 implemented. 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 now declared to be Pakistan territory. These persons cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 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 compass. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 kingdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bates Vol. 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([1892] A.C. 491) .As was observed by Lord Atkin in Attorney General for Canada v. Attorney General for Ontario([1937] A.C. 326 at 347) the position may be summed up thus : there is a distinctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 Ponsonby 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 boun- daries. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken 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 matter. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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([1949] P. R. 309.), 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. (L.R. [1900] 1 Ch. 811.) which reads: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ementation 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs v. Union of India([1966] 1 S.C.R. 430) 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 wag 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal background, the words as if have a special significance. They refer to territories which originally did not belong to West 7Sup.CI/69-19 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 Entry. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Berubari Case. 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. 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 regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Kutch. 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 (Append ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bet 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. 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 definite evidence. 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 publishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 Ministerial Conference contemplated to be held did not take place, and the two Governments decided to have recourse to the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 widthless line, though raised, has never been decided; that such widthless 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control points determined and the pillar position-, located with the help of these points. 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, mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, 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 selfexecutory. 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing domestic law, requires legislative action. Unlike some other countries, 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 statutes..... 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 no- provision making legislation a condition of the entry into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislation: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 In Re : The Berubari Uninion and Exchange of Enclaves([1960] 3 S.C.R. 250) 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 constitutional amendment. 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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, 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. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 estimate. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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