LexRAM KISHORE SEN AND OTHERS versus UNION OF INDIA AND OTHERS
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430
RAM KISHORE SEN AND OTHERS
v.
UNION OF INDIA AND OTHERS
August 11, 1965
A
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYAT·
B
ULLAH, J. c. SHAii AND s. M. Suau, JJ.]
Consrilution (Ninth Ammdment) A.ct, 19~Transftr of certain awu
to Pakistan in fulfilment of India-Pakistan A.grumen:-Legulity of.
As a result of the 'lndo-Pak..ista11 Agreements'
entered into in
1956
between the Primo Mini,tcrs of India and Pakistan half of the area k.nowu
as Barubari Union No. 12, and a ponion of Chilahati village arlmcasuring
512 acres were agreed to
be uasferred by India to Pakistan. Cenaiu
questions arising out of the implementation of the sand Agreements were
referred by the President under An. 143( 1) of the Constitution, to this
Court, and were answered by this Coun in Special Reference No. I of
1959.
In accordance \\.ith the answers therein given. Parliament passed
the Constitution (Ninth Amendment) Act, 1960.
There was l?rovision in
the Act for a date, to be appointed by notification in the Offictal Gazette,
for the transler of the areas in question of Pakistan. In regard to Berubari
Union No. 12 the Sec-Ond Schedule to the Amending Act, inter a/la, said :
"Thia will be so divided as to give half the area to Pakistan. the other
half adjacent lo India being retain<'d by India.
The division of Berubari
Union No. 12 will be horizontal. starting from the nonh-east corner o!
Debiganj Tbana." The appellants filed a writ petition in the High Court
of Calcutta challenging the legality of the proposed transfer of the said
areas of Berbubari Union No. 12 and Chilahati village to Pakistan. The
language of the Amending Act in regard to Berubari Union No. 12 wa..,
they urgeJ, so confused that it w.. incapable to
implcmcntatioo. In
rCllllfd to Chilabali village they uricd that il was outside tho Radclift'c
Award.
Reliance was placed by them on an unoC!icial map, Ext. A-1.
The High C-Ourt found that Ext. A-1 was inadmis.Siblo and unrcliablt.
Relying on the maps produced by tbe respondents it dismissed the writ
petition filed by the oppcllants who. with certificate. appealed to this Court.
It Wa! urged on behalf of the appellants : (I) If the division
of
Barubori Union No. 12 was made as directed by the said amendment no
portion of Berubari Union No. 12 woold fall to the south of the horizon-
tal line starting from the north-east corner of Dcbiganj Thana. so that no
part of the \aid Union could be transferred to Pakistan.
( 2) The Hi~h
Court erred in holding that map F.xt. A-1 was neither relevant nor accurate.
(3) The location of ditTerent villages in the various Th:ina~ was a matter
within the special lroowblge of the ri:,•pondcnts and under s. 106 of the
Evidence Act the onus of proving the relevant facts was on the respon~
dents.
( 4) The ponion of Chilahati village in question was difforent from
the village of Cbilahati which had gone 10 Pakistan under the Radcliffe
Award, as y,·as shown not only hy maps but hy certain private document,
which described Cbilahati as pan of Jalpaiguri Thana. (5) Entry 13 in
the First Schedule to the Constitution provides, inter a/la, that West Bengal
means the territories which immediately before the eommen~ment of the
Cons.titution were either compri!ed in the Province of West Bengal or were
hcing administered 'a< if they formed pan of that Pro' ince. The portion
('Of Qiilahoti in question was being admini-<lered 'as if it was a part of
tbe Province of Wcot Bengal and must be deemed to have been included
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R. K. SEH v. UNION
431
in the territory of West Bengal within the aeaning 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 Jost bY'
adverse possession.
HELD : (i) It had not been proved that Ext. A-1, relied on by the·
appellants, was generally offered for public sale.
The requirements of
s. 36 of the Evidence Act were thus not satisfied and Ext. A-1 wa• irre-
levant.
Even if the said map was treated. as relevant its accuracy had
not been established and no presumption as to its accuracy could be mad•
under s. 83 of the Evidence Act, since the requirements laid down in the
first p;irt of the section were not saExcerpt shown. Read the full judgment & AI analysis in Lexace.