9911796707
TMI Blog1965 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer. Appellants 1 and 2 are the original inhabitants of villages Senpara and Deuniapara respectively which are within the limits of Berubari Union No. 12. They own ancestral homes and cultivated lands in the said villages and they live in the homesteads. Appellants Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri ; but when Thana Boda was transferred to Pakistan as a result of the partition in 1947, they came over to the villages of Senpara and Gouranga bazar respectively within the limits of Berubari Union No. 12; since then, they have acquired lands there and built their homesteads in which they live. Appellants Nos. 5 and 6 are the inhabitants of village Chilahati, and according to them. this village is situated in Thana Jalpaiguri. In this village, these two appellants have their ancestral homes and cultivated lands. 2. It is a matter of common knowledge that on September 10, 1956, an agreement was reached between the Prime Ministers of India and Pakistan with a view to settle some of the disputes and problems pending between the two countries. This agreement was set out in the note jointly recorded by the Commonwealth Secretary, Ministr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959, and the 11th January, 1960 entered into between the Government of India and Pakistan. The relevant extracts from the said Agreements have been set out in the Second Schedule to the Ninth Amendment Act. The material portion of the said Schedule reads as follows :- (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 corner of Debiganj Thana. The division should be made in such a manner that the Cooch Behar enclaves between Pachagar thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri thana of West Bengal will remain connected at present with Indian territory and will remain with India. The Cooch Behar enclaves lower down between Boda thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan. 5. The appellants alleged that it had come to their knowledge that about a month before the date of their petition, officers of the two Governments had gone to the locality to make demarcation by holding a survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage of Chilahati, the respondents contended that the said village formed part of Debiganj Thana and had been assigned to the share of Pakistan by the Radcliffe Award. All that the respondents intended to do was to transfer to Pakistan a small area of about 512 acres of the said village which had not been delivered over to Pakistan on the earlier occasion when partition was made. That being so, the intended transfer of the said village was fully legal and valid and did not contravene any provisions of the Constitution. On these pleadings, the parties led evidence in the form of maps, and the case was argued elaborately before the learned trial Judge. The trial Judge has found against the appellants on all the important issues. He has held that the map Ext. A-l on which the appellants substantially based their case, was really not admissible under s. 36 of the Indian Evidence Act. Alternatively, he found that the map was not reliable and could not be legitimately utilised for the purpose of determining the merits of the appellants' contention. The learned Judge examined the maps produced by the respondents and came to the conclusion that they were admissible and reliable. On ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive to Pakistan what really belonged to her; the said area was not, in law, a part of West Bengal, and no question in relation to the constitutional validity of the said proposed transfer can therefore, arise. The plea of adverse possession which was made by the appellants alternatively in respect of Chilahati was rejected by the learned Judge. In the result, the appellant's prayers for the issue of a writ or order in the nature of mandamus in respect of the said proposed transfer of Chailahati was also disallowed. 8. It appears to have been urged before the learned Judge that in order to make the transfer of a part of Berubari Union No 12 to Pakistan, it was necessary to make a law relating to Art. 3 of the Constitution. The learned Judge held that the this plea had been rejected by this Court in the opinion rendered by it on the earlier Reference; and so, an attempt made by the respondents to implement the material provisions of the Ninth Amendment Act was fully justified. That is how the writ petition filed by the appellants can be dismissed. 9. The appellants the moved the learned Judge for a certificated to prefer an appeal to this Court; and after the learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India, Therefore, the assumption made in the opinion that Art. 3 in its several clauses does not include the Union territory is misconceived and to that extent, the incidental reason given in support of the main conclusion is not justified. However, the conclusion itself was based primarily on the view that the power to cede a part of the national territory and the power to acquire additional territory were the inherent attributes of sovereignty; and if any part of the national territory was intended to be ceded, a law relating to Art. 3 alone would not be enough unless appropriate action was taken by the Indian Parliament under Art. 368. It is common ground that the Ninth Constitution Amendment Act has been passed by Parliament in the manner indicated in the opinion rendered by this Court on the said Reference. 11. Reverting then to the points urged before us by Mr. Mukerjee, the first question which falls to be considered is whether the learned trial Judge was in error in holding that the map Ext. A-1 on which the appellant had rested th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement made by Mr. Gupta. 13. The question about the admissibility of the map has to be considered in the light of s. 36 of the Evidence Act. The said section provides that :- Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or places made under the authority of the Central Government or any State Government, as to matters usually represented or state in such maps, charts or places, are themselves relevant facts. 14. The map in question clearly does not fall under the latter category of maps; and so, before it is treated as relevant, it must be shown that it was generally offered for public sale. Since the learned Judge has rejected the statement of Mr. Gupta on this point, this requirement is not satisfied. We see no reason why the view taken by the learned Judge in regard to the credibility of Mr. Gupta's affidavit should be reversed. So, it follows that without proof of the fact that the maps of the kind produced by the appellants were generally offered for public sale, Ext. A-1 would be irrelevant. 15. It is true that s. 83 of the Evidence Act provides that the Court shall presume tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have suppressed evidence, or can ask the Court to hold that the onus was on the respondents to prove that the relevant provisions of the Amendment Act can be implemented. The onus must primarily lie on the appellants to show that what is attempted to be done by the respondents in pursuance of the provisions of the Amendment Act is illegal or unconstitutional; and if they are not able to produce evidence in support of their plea, they cannot require the respondents to show that the plea made by the appellants is untenable. The location of the villages in the different Thanas cannot be regarded as a matter within the exclusive knowledge of the respondents and in any case, it has to be proved by the production of reliable maps. Both parties have produced maps; and the learned trial Judge has refused to accept the maps produced by the appellants as reliable and has treated the maps produced by the respondents as worthy of credence. Under these circumstances, no question of onus really arises. 18. The respondents have produced eight maps in all. One of them purports to be a congregated map of Police Station Jalpaiguri, Pochagar, Boda and Debiganj made and published under authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izontal , starting from the north-east corner of Debiganj Thana, it is not intended that it should be made by a mathematical line in the manner suggested by the appellants. In fact, the provision does not refer to any line as such; it only indicates broadly the point from which the division has to begin - east to west, and it emphasises that in making the said division, what has to be borne in mine is the fact that the Union in question should be divided half and half. Even this division half and half cannot, in the very nature of things, be half and half in a mathematical way. The latter provision of the Agreement in relation to Cooch Behar also gives additional guidance which has to be taken into account in effecting the partition of Berubari Union No. 12. Therefore, the learned Judge was plainly right in rejecting the contention of the appellants that a straight horizontal line has to be drawn from the north-east corner of Debiganj Thana in order to effect the division of Berubari Union No. 12. So, there is no substance in the contention raised by Mr. Mukerjee before us that the learned Judge should have issued a writ or order in the nature of mandamus prohibiting the division o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilahati is shown to exist is Debiganj; its area is 10,006.75 acres which is equal to roughly 15 to 16 square miles. In fact, the maps Exts, A-7 and A-8 produced by Mr. Mukerjee show that the Jurisdiction List number of Chilahati is 248, and that, in turn, proves the respondents' case that Chilahati is within the jurisdiction of Polled Station Debiganj. The two survey maps produced by the respondents Exts. 8 and 9 also corroborate the same conclusion. When these two maps were put side by side, the learned Judge found that their edges exactly fit into one another. 23. Mr. Mukerjee very strongly relied on certain private documents produced by the appellants in the form of transfer deeds. In these documents, no doubt, Chilahati has been referred to as forming part of District Jalpaiguri. These documents range between 1925 A. D. to 1945 A. D. It may well be that a part of this elongated village of Chilahati admeasuring about 15 to 16 square miles may have been described in certain private documents as falling under the district of Jalpaiguri. But, as pointed out by the learned Judge, in view of the maps produced by the respondents it is difficult to attach any importance to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that West Bengal means the territories which immediately before the commencement of this Constitution were either comprised in the Province of West Bengal or were being administered as if they formed part of that Province. Mr. Mukerjee's argument i.e.; that it is common ground that this portion of Chailahati was being administered as if it was a part of (he Province of West Bengal; and so, it must be deemed to have been included in the territory of West Bengal within the meaning of the First Schedule, and if that is so, it is a part of the territory of India under Art. ] of the Constitution. It is true that since this part of Chilahati was not transferred to Pakistan at the proper time, it has been regarded as part of West Bengal and administered as such. But the question is : does this fact satisfy the requirement of Entry 13 on which the argument is based? In other words, what is the meaning of the clause the territories which were being administered as if they formed part of that Province ; what do the words as if' indicate in the context? The interpretation of this clause necessarily takes us to its previous history. 25. When the Constitution was first adopted, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are for the time being exercisable by the Dominion Government, the Governor-General may be order direct - (a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner's Province; or (b) that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governor's or a Chief Commissioner's Province specified in the Order. 28. It will be noticed that the significant and material words with which we are concerned have been used in clauses (a) and (b) of s. 290A and have been reproduced in the relevant clause of the First Schedule to the Constitution. It is well known that at the relevant time, merger of States was taking place on a large scale and the covenants which were being executed in that behalf conformed to the same pattern. The Order No. S. O. 25 made by the Governor-General on July 27, 1949 and published for general information provided by clause 3 that as from the appointed day, the States specified in each of the Schedule shall be administered in all respects as if they formed part of the Province specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal itself. That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs under the Radcliffe Award. 30. Mr. Dutt, who followed Mr. Mukerjee, attempted to argue that the village of Chilahati has become a part of West Bengal and as such, a part of the Union of India because of adverse possession. He contends that ever since the Radcliffe Award was made and implemented, the possession of West Bengal in respect of this area is adverse; and he argues that by adverse possession. Pakistan's title to this area has been lost. We do not think it is open to the appellants to raise this contention. It has been fairly conceded by Mr. Dutt that no such plea had been raised in the writ petition filed by the appellants. Besides, it is plain that neither the Union of India, nor the State of West Bengal which are impleaded to the present proceedings make such a claim. It would indeed be surprising that even though the Union of India and the State of West Bengal expressly say that this area belongs to Pakistan under the Radcliffe Award and has to be deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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