UNION OF INDIA versus SUDHANSU MAZUMDAR & ORS.

Citation: [1971] SUPP. 1 S.C.R. 244 · Decided: 29-03-1971 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

%44 
A 
UNION OF INDIA 
v. 
SUDHANSU MAZUMDAR & ORS. 
March 29, 1971. 
B 
[S. M. Suoo, c. J .• J. M. SHE LAT. c. A. v AJDIALINGAM, 
c 
D 
E 
F 
G 
H 
A. N. GROVER AND A. N. RAY, JJ.] 
Cession-Constitution (Ninth Amendment} Act, 1960-Cession of ter-
ritory 10 Pakistan-If acquisition within the meaning of Art. 31(2). 
Constitution of India, 1950, Art. 31(2)-<:ession of territory to foreign 
State if acquisition. 
Constitution of India, 1950-Article 132(1)-<:ertificate by Single Judge 
-Propriety of. 
Pursuant to the Indo-Pakistan Agreement, 1958, and after this Court's· 
Advisory opinion in In re the Berubari Union and Exchange and Enclaves, 
(1960] 3 S.C.R. 250, Parliament enacted the Constitution (Ninth Amend-
ment) Act, 1960 for cession of part of the territory of India to Pakistan. 
In order to implement the provisions of the Act a physical demarcation 
of the portion that had to be ceaded was necessary. The respondents filed 
a petition under Art. 226 of the Constitution before the High Court challen-
ging the validity of the proposed demarcation principally on the ground 
that they would be deprived of their property without compensation. A 
single Judge of the High Court held that the cession of the territory in-
volved transfer of ownership and other private property rights to Pakistan 
through the Union of India, which, though outside cl. 2A of Art. 31 was 
compulsory acquisition within the meaning of Art. 31(2). The single Juds~ 
granted a certificate under Art. 132(1) for appeal to this Court. 
HELD: (1) No question of acquisition within the meaning of Article 
31(2) is involved in the present case. The Constitution (Fourth Amend-
ment) Act, 1955, makes it clear that mere deprivation of property unles• 
it is acquisition· or requisitioning within the meaning of cl. 2A will not 
attract cl. (2) and no obligation to pay compensation will arise thereunder 
and it is essential under clause (2} that in order to constitute acquisition 
or requisitioning there must be transfer of the ownership or right to pos-
session of the property to the State or to a co_rporation o"vned or controll-
ed by the State. Cession indisputably involves transference of sovereignty 
from one sovereign State to another. But, there is no transference of owner. 
ship or right to possession in the properties of the inhabitants of the ter-
ritory ccdt.d to the ceding State itself. 
The effect of the Constitution 
(Ninth Amendment) Act, 1960, can by no stretch of reasoning be regard-
ed as transfer of .the ownership or right to possession of any property of 
the respondents to the "State" within the meaning of Article 12 
of the 
Constitution. [202C-F, HJ 
Charanjit Lal Chowdhury v. Union of India, (1950] S.C.R. 869, 902. 
State of West Bengal v. Subodh Gopal Bose & Ors. [1954] S.C.R. 587, 
Dwarkadas Shrinivas of Bombay v. Sholapur Spinning ... t 
Weavbig Co. 
Ltd. & Ors. [1954] S.C.R. 674, Saghir Ahmed v. State of Uttar Pradesh, 
(1955] 1 S.C.R. 707 and Gul/apalli Nage>wara Rao & Ors. v. Andhra 
Pradesh State Road Transport Corporation & Anr. (1959] Supp. 1 S.C.R. 
319, referred 10. 
UNION v. s. MAzUMDAR (Grover, J.) 
(ii) l'his Court has on earlier occasions, observed that the practice of 
a single Judge deciding the case and giving a certificate under Article 132 
(1) for appeal to this Court, although technically correct, was an improper 
practice and that such a certificate should be given only in very exceptional 
cases where a direct appeal was necessary. The present case may be of 
an exceptional kind; but this Court has been deprived of the benefit of 
the judgment of a larger Bench of the High Court on points which are of 
substantial importance. [246B] 
R. D. Agarwala. & Anr. v. Union of India & Ors .. C.A. Nos. 2634/69 
etc. dt. 23-2-1970 and Union of India v. J. P. Mitter, [1971] 3 S.C.R. 483, 
referred to. 
OVIL APPELLATE JURISDICTION: Civil Appeal No. 974 of 
1968. 
Appeal from the judgment and order dated December 22, 
1967 and January 3, 1968 of the Calcutta High Court in Civil 
Rule No. 3369(W) of 1966. 
L. M. Singhvi and S. P. Nayar, for the appellant. 
245 
A 
B 
c 
A. K. Dutta and K. Rajendra Chowdhary, for respondents 
D 
Nos. 1 to 3. 
Santosh Chatterjee and G. S. Chatterjee, for respondent No. 4 
The Judgement of the Court wa.i delivered by 
Grover, J.-This is an appeal from a judgment of a learned 
single judge of the Calcutta High Court who granted a certificate 
under Art. 132(1) of the Constitution. It inyolves prim
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