Constitution (Ninth Amendment) Act, 1960 - Transfer of certain areas to Pakistan in fulfilment of India-Pakistan Agreement: Legality of.

As a result of the 'Indo-Pakistan Agreements' entered into in 1956 between the Prime Ministers of India and Pakistan, half of the area known as Berubari Union No. 12, and a portion of Chilahati village measuring 512 acres, were agreed to be transferred by India to Pakistan. Certain questions arising out of the implementation of the said Agreements were referred by the President under Art. 143(1) of the Constitution, to this Court, and were answered by this Court in Special Reference No. I of 1959. In accordance with the answers therein given, Parliament passed the Constitution (Ninth Amendment) Act, 1960. There was provision in the Act for a date to be appointed by notification in the Official Gazette for the transfer of the areas in question to Pakistan. In regard to Berubari Union No. 12, the Second Schedule to the Amending Act, inter alia, said: "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 appellants filed a writ petition in the High Court of Calcutta challenging the legality of the proposed transfer of the said areas of Barubari Union No. 12 and Chilahati village to Pakistan. The language of the Amending Act in regard to Berubari Union No. 12 was, they urged, so confused that it was incapable of implementation. In regard to Chilahati village, they argued that it was outside the Radcliffe Award. Reliance was placed by them on an unofficial map, Ext. A-1. The High Court found that Ext. A-1 was inadmissible and unreliable. Relying on the maps produced by the respondents, it dismissed the writ petition filed by the appellants who, with certificate, appealed to this Court.

It was urged on behalf of the appellants: (1) If the division of Berubari Union No. 12 was made as directed by the said amendment, no portion of Berubari Union No. 12 would fall to the south of the horizontal line starting from the north-east corner of Debiganj Thana, so that no part of the said Union could be transferred to Pakistan. (2) The High Court erred in holding that map Ext. A-1 was neither relevant nor accurate. (3) The location of different villages in the various Thanas was a matter within the special knowledge of the respondents and under s. 106 of the Evidence Act, the onus of proving the relevant facts was on the respondents. (4) The portion of Chilahati village in question was different from the village of Chilahati which had gone to Pakistan under the Radcliffe Award, as was shown not only by maps but by certain private documents, which described Chilahati as part of Jalpaiguri Thana. (5) Entry 13 in the First Schedule to the Constitution provides, inter alia, that West Bengal means the territories which immediately before the commencement of the Constitution were either comprised in the Province of West Bengal or were being administered 'as if they formed part of that Province. The portion of Chilahati in question was being administered 'as if it was a part of the Province of West Bengal and must be deemed to have been included in the territory of West Bengal within the meaning of the First Schedule, and if that was so, it was a part of the territory of India under Art. 1 of the Constitution. It could not therefore be ceded to Pakistan without following the procedure laid down by this Court in Special Reference No. 1 of 1959. (6) In any case, Pakistan's title to Chilahati had been lost by adverse possession.