IN RE: THE BERUBARI UNION AND EXCHANGE OF ENCLAVES REFERENCE UNDER ARTICLE 143(1) OF THE CONSTITUTION OF INDIA versus .

Citation: [1960] 3 S.C.R. 250 · Decided: 14-03-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Reference answered
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Judgment (excerpt)

Pramatha Nath 
Mul1herjee 
v. 
State of West 
Bengal 
Dos Gupta ]. 
Marth z4. 
250 
SUPREME COURT REPORTS 
[1960] 
tute also a minor offence under s. 323 I.P.C. The 
Magistrate when he took cognizance under s. 190(l)(b) 
Cr. P.O. of the offence under s. 332 I.P.C. cannot but 
have taken cognizance alHo ofthe minor offence under 
s. 323 I.P.C. Consequently, even after the order of 
discharge was made in respect of the offence under 
s. 332 I.P.C. the minor offence under s. 323 of which 
he had also taken cognizance remained for trial as 
there was no itfdication to the contrary. That being 
an offence triable under Chapter XX Cr. C.P. the 
Magistrate rightly followed the procedure under 
Chapter XX. 
The appeal is accordingly dismissed. 
Appeal dismissed. 
IN RE: THE BERUBARI UNION AND 
EXCHANGE OF ENOLA VES 
REFERENCE UNDER ARTICLE 143(1) OF 
THE CONSTITUTION OF INDIA 
(B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRA-
GADKAR, A. K. SARKAR, K. SuBBA RAo, 
'l\L HIDAYATULLAH, K. 0. DAS 
GUPTA and J. C. SHAH, JJ.) 
President's Reference-Inda-Pakistan Agreement, r958-Divi-
sion of Berubari Union and exchange of Cooch-Behar Enclaves-If 
involve cession of territory-Implementation-Amendment of Consti-
tution-Constitution of India, Arts. I, 3, 368. 
As a result of the Radcliffe Award dated August 12, 1947, 
Berubari Union No. 12 fell within West.Bengal and was treated 
as such by the Constitution which came into force on January 26, 
1950, and has since been governed on that basis. Certain dis-
putes arose between India and Pakistan subsequent to the Rad-
.cJiffe Award but Berubari was not in issue before the Bagge 
Commission set up by agreement between the parties to decide 
those disputes. 
That commission made its award on January 26, 
1950. Pakistan raised the question of Berubari for the first time 
in 1952 alleging that under the Radcliffe Award it should form 
part of East Bengal and was wrongly included in West Bengal. 
On August 28, 1949, the Ruler of the State of Cooch-Behar 
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3 S.C.R. SUPREME COURT REPORTS 
251 
entered into an agreement of merger with the Government of 
India and that Government took over the administration of 
Cooch-Behar which was ultimately merged with West Bengal on 
January I, 1950, so as to form a part of it. It was found that 
certain areas which belonged to the State of Cooch-Behar became 
enclaves in Pakistan after the partition, and similarly certain 
Pakistan enclaves fell in India. 
In order to remove the tension and conflict caused thereby 
the Prime Ministers of India and Pakistan entered into an agree-
ment, called the Indo-Pakistan Agreement on September IO, 1958, 
and items 3 and 10 of that agreement provided for a division of 
Berubari Union half and half between India and Pakistan and 
for an exchange of Cooch-Behar Enclaves in Pakistan and Pakis-
tan Enclaves in India. 
Doubts having subsequently arisen regarding the implemen-
tation of the said items, the President of India referred the 
matter to the Supreme Court under Art. 143(1) of the Consti-
tution: 
Held, that item No. 3 of the Agreement leaves no manner Of 
doubt that the parties to it were thereby seeking-to settle the dis-
pute apart from the Award, amicably, and on ad hoc basis by 
dividing the territory half and half. There is absolutely no indi-
cation in it that they were seeking to interpret the Award and 
determine the boundary on that basis. The question relating to 
Berubari must, therefore, be considered on the basis that it in-
volves cession of a part of India's territory to Pakistan and this 
applies with greater force to the agreement relating to the 
exchange of the enclaves. 
There can be no doubt that the implementation of the 
Agreement would alter the boundary of West Bengal and affect 
Entry 13 in the First Schedule to the Constitution, since as a 
matter of fact Berubari was treated as a part of West Bengal and 
governed as such from the date of the Award and was thus com-
prised th,erein before the commencement ,of the Constitution. 
Any argument to the contrary cannot be accepted. 
The State of Australia v. The State of Victoria, (19n) 12 
C.L.R. 667 and The State of South Australia v. State of Victoria, 
(1914] A.C. 283, distinguished and held inapplicable. 
Although it may be correct to describe the preamble as a key 
to the mind of the Constitution-makers, it forms no part of the 
Constitution and cannot be regarded as the source of any sub-
stantive power which the body of the
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