Table of Contents

Case Title.........................................................................................................................................2
Facts of the case...............................................................................................................................2
Issues................................................................................................................................................5
Held..................................................................................................................................................5
Conclusion.......................................................................................................................................7
Annexure 1.......................................................................................................................................8
Annexure 2.......................................................................................................................................9
Annexure 3.....................................................................................................................................10
 Case Title
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 2833-35 of 1987
Decided On: 03.05.1990

Union of India (UOI) and Ors. Vs. Sukumar Sengupta and Ors.

Hon'ble Judges :
Sabyasachi Mukherjee, C.J., M.H. Kania, K. Jagannatha Shetty, K.N. Saikia and S.C. Agrawal,
JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: N.D.B. Raju and N. Ganapathy, Advs

For Respondents/Defendant: S.S. Khanduja, Yash Pal Dhingra and Baldev Krishan Satija, Advs.

Facts of the case

The Indian Independence Act, 1947 had set up two independent dominions known as 'India' and
'Pakistan'. A Boundary Commission was appointed to determine the boundaries of the two
dominions, As a result of its Award, certain areas of India became, after the partition, enclaves
in East Pakistan. Similarly, certain East Pakistan enclaves were found in India. Dehagram and
Angarpota were two such Pakistani enclaves in India.

In view of the Award, Berubari Union No. 12 was treated as part of the Province of West
Bengal. Near about 1952, Pakistan alleged that under the Award the Berubari Union should
really have formed part of East Bengal. Eventually, in 1958 the Prime Ministers of India and
Pakistan entered into an agreement settling certain boundary disputes. The agreement inter alia
provided for the division of Berubari Union No. 12 between India and Pakistan and exchange of
Indian enclaves in Pakistan and Pakistan enclaves in India.

Doubts arose regarding the implementation of the 1958 agreement. Therefore, in exercise of the
powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of
India referred the matter to the Supreme Court. In the light of the opinion rendered by the
Supreme Court in Re: The Berubari Union and Exchange of Enclaves, [1960] S.C.R. 3 250, the
Constitution (Ninth Amendment) Act, 1960 was passed to give effect to the transfer of the
territories as envisaged in the 1958 agreement. By an official notification, 17th January 1961 had
been appointed as the day for the transfer of the territories of India by way of exchange with the
territories of Pakistan in the western region. No further appointed day was notified so far as the
eastern border of India was concerned.

On or about the 16th May, 1974 an agreement was entered into between the Prime Ministers of
India and Bangladesh. This agreement inter alia provided that India will retain half of Berubari
Union No. 12, which under the 1958 agreement was to be transferred to Pakistan, and in
exchange Bangladesh will retain the Dahagram and Angarpota enclaves. The agreement further
provided that India will lease in perpetuity to Bangladesh a small area near 'Tin Bigha' for the
purpose of connecting Dahagram and Angarpota with Panbari Mouza of Bangladesh. The 1974
agreement, however remained unimplemented.

Thereafter, in October 1982 an understanding was reached between the two governments in
respect of 'lease in perpetuity' by India of the said area near 'Tin Bigha' to enable the Bangladesh
government to exercise her sovereignty over Dahagram and Angarpota. It was further agreed that
the 1982 agreement would be an integral part of the earlier agreement of 1974. It was also agreed
that the sovereignty over the leased area shall continue to vest in India. Clause 9 of the 1982
agreement provided that India would have no jurisdiction over Bangladesh nationals in respect of
any offence committed in the area, and the same shall be dealt with by the Bangladesh law
enforcing agency only.

In 1983, Writ Petitions were filed in the Calcutta High Court challenging the validity of the
agreement. The learned Single Judge dismissed the writ petitions and concluded that:
a. Implementation of the agreements of 1974 and 1982 did not involve cession of any
Indian territory to Bangladesh.
b. No exclusive or legal possession of Tin Bigha was being transferred to Bangladesh.
c. There was no question of transfer of sovereignty of India wholly or partially in respect of
the said area.
d. Certain privileges only had been conferred on Bangladesh and its nationals under the said
agreements which otherwise they would not have.
 e. As Dahagram and Angarpota would remain as parts of Bangladesh territory, the
agreements were necessary to enable Bangladesh to exercise its sovereignty in full over
the said enclaves.
f. In spite of the said agreements India would retain its sovereignty, ownership and control
over Tin Bigha.

An appeal was filed before the Division Bench. It was contended before the Division Bench
that :
(i) the 1974 agreement specifically provided that the same would be suitably ratified
but it had not been ratified;
(ii) in the absence of any ratification of the agreement of 1974, India and
Bangladesh could not enter into the subsequent agreement in 1982 on the basis of
the agreement of 1974;
(iii) by reason of the agreement of 1958 between India and Pakistan, which was
sanctioned by the Ninth amendment to the constitution, there was automatic
exchange of the Pakistani enclaves in the eastern part of India with the Indian
enclaves in eastern Pakistan;
(iv) neither India nor Bangladesh had formally terminated the treaty of 1958 and as such
in so far as the provisions of the said agreement of 1958 concern Berubari union No.
12 and the Cooch Behar enclaves, including Dahagram and Angarpota, they could
not be given a go-by in the manner purported to have been done, and a further
amendment to the Constitution was necessary; and
(v) the use of the expression 'residual jurisdiction' in clause 9 of the agreement of 1962
indicated that Indian only retained residual sovereignty over the area and the defacto
arid real sovereignty in the area had been surrendered to Bangladesh.

The Division Bench repelled these contentions. The Bench however was of the view that the
agreements of 1974 and 1982 providing for exchange of territories would have to be noted in the
relevant schedules to the Constitution before any appointed day could be notified
in respect of the territories to be transferred to Bangladesh. According to the Division Bench, this
was necessary in order to retain Berubari in India. As a result appeal was preferred in the
honorable Supreme Court of India.
Issues
 Whether agreements formed in 1974 and 1982 between Governments of Bangladesh and
India in the absence of any legislative action confer it the power was constitutionally valid?

 Whether the agreement symbolizes cession of territory?

Held
The Honorable Supreme Court observed the following:

 The Division Bench came to the correct conclusion that in so far as the eastern border of
India was concerned, the Ninth Constitutional amendment had not become part of the
Constitution as no appointed day had been notified, and in that view of the matter, the
decision to allow Bangladesh to retain Dahagram and Angarpota under the 1974
and 1982 agreements did not amount to cession of Indian territory in favour of
Bangladesh.
 The Division Bench was pre-eminently right in arriving at the conclusion that there was
no automatic transfer of Dahagram and Angarpota to India under the 1958
agreement in the absence of a notified appointed day, and consequently both defacto and
dejure these enclaves remained part of East Pakistan and subsequently Bangladesh.
 The agreements of 1974 and 1982 did not amount to cession of territory or
abandonment of sovereignty. If that is the position, no constitutional amendment
was required for the arrangements entered into either by the agreement of 1974 or
1982. The Division Bench was therefore in error in expressing a contrary view.
 In that view of the matter, the agreements of 1974 and 1982 did not require to be suitably
notified or included in the official gazette. Therefore, there was no cause to direct the
legislature to amend or pass suitable laws.
 The expression 'lease in perpetuity' has to be understood in the context of and with
reference to the objects of the agreement. The object of the lease was to allow access
 to Bangladesh to Dahagram and Angarpota for the purpose of exercise of her sovereignty
over and in the said areas. Having examined the rights in the agreements, these do not
amount to lease or surrender of sovereignty as understood in the international law.
 The Division Bench rightly held that the recital in a deed could not operate as an estoppel
against the specific terms and conditions thereof. On a construction of the agreements,
the Division Bench came to the correct conclusion that the agreements of 1974 and 1982
together in their entirety must be judged.
 An agreement between two countries might be ratified not only by a subsequent formal
agreement but by actual implementation or by conduct, and read properly, the subsequent
agreement did ratify the previous agreement.
 The Division Bench rightly held that under the said agreements, specific and limited
rights were being granted to Bangladesh. Such rights were not exclusive and the
aggregation thereof would not amount to a lease, as is commonly understood in favour of
Bangladesh.
 Certain restrictions had been imposed on India over its absolute sovereignty in the area to
serve the purpose in favour of and in the interest of Bangladesh. These are, however, self-
imposed restrictions. On a proper construction of the agreements of 1974 and 1982
and the individual clauses, it cannot be said that as a result of the said
agreement, India had surrendered its sovereignty over the said area of Teen
Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the
said territory to the exclusion of India.
 Sovereignty is a quality of right. It is a bundle of rights. It depends on the facts and the
circumstances of each case. Apart from anything else, the specific clause in the
agreement of 1982 that sovereignty over the area shall continue to vest in India stands in
the way of a contrary construction.
 `Sovereignty' has been defined as "the supreme authority' in an independent political
society. It is essential, indivisible and illimitable. However, it is now considered and
accepted as both divisible and limitable. Sovereignty is limited externally by the
possibility of a general resistance- Internal sovereignty is paramount power over all
action, and is limited by the nature of the power itself.
 In the present and modern context sovereignty has and must have a more restrictive
meaning than it had in the earlier centuries when on the emergence of individual
 national States, no limits on the power of States, were acknowledged. Any State in the
modern times has to acknowledge and accept customary restraints on its
sovereignty in as much as no State can exist independently and without reference to
other States. Under the general international law the concept of interdependence of
States has come to be accepted. Even without the said agreements of 1974 and 1982, so
long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general
international law and customs would have a right to access to the said enclose through
the territory of India.
 Amicable and peaceable settlement of boundary disputes are in the interests of the
international community. The older and absolute ideas of 'sovereignty and independence
has thus necessarily to be modified in the dawn of the 21st century. A perpetual right to
passage and other incidental rights given to Bangladesh for the limited purpose for
exercising the sovereignty over her own two enclaves within the territory of India
and/or if imposed restrictions on itself by India does not tantamount to transfer of
interests in India.

Conclusion
This is one of the important cases related to Article 3 of the Indian Constitution which deals
with the Formation of new States and the alteration of areas, boundaries or names of existing
States and, the power to cession of territory. It pertains to the transfer of the Teen Bigha
area to Bangladesh through a perpetual lease deed. It was determined that a constitutional
amendment was not necessary for this transfer, as it did not entail the cessation of Indian
territory.
 Annexure 1
(Relevant items of Agreement of 1958)

Item No. 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 West Bengal will remain connected as at
present with Indian territory and will remain with India. The Cooch-Behar Enclaves lying
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.

Item No. 10:-

Exchange of old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim
to compensation for extra area going to Pakistan, is agreed to.
 Annexure 2
(Relevant items in Agreement of 1974)

Item No. 12:-

The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged
expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation
for the additional, area going to Bangladesh.

Item No. 14:-

India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves,
measuring an area 2.64 square miles approximately, and in exchange Bangladesh will retain the
Dahagram and Angarpota enclave. India will lease in perpetuity to Bangladesh and area of
approximately 178 metres x 65 metres near 'Tin Bigha' to connect Dhagram with Panbari Mouza
of Bangladesh.
 Annexure 3
(Relevant clauses in the Agreement of 1982)

Clause 1:-
The lease in perpetuity of the aforementioned area shall be for the purpose of connecting
Dahagram and Angarpota with Panbari Mouza (P.S. Patgram) of Bangladesh to enable the
Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota.

Clause 2-
Sovereignty over the leased area shall continue to vest in India. The rent for the lease area shall
be Bangladesh Re. 1 (Bangladesh Taka one) only per annum. Bangladesh shall not however be
required to pay the said rent and Government of India hereby waives its right to charge such rent
in respect of the leased area.

Clause 3:-
For the purposes stated in para 1, Bangladesh shall have undisturbed possession and use of the
area leased to her in perpetuity.

Clause 4:-
Bangladesh Citizens including Police, Para Military and Military personnel along with their
arms, ammunition equipment and supplies shall have the right of free and unfettered movement
in the leased area and shall not be required to carry passports or travel documents of any kind.
Movement of Bangladesh goods through the leased area shall also be free. There shall be no
requirement of payment of customs duty tax or levy of any kind whatsoever or any transit
charges.

Clause 5:-
Indian citizens including police, par Military and Military personnel along with arms
ammunition equipment and supplies shall continue to have right of free and unfettered
movement in the leased area in either direction. Movement of Indian goods across the leased area
shall also be free. For purpose of such passage the existing road running across it shall continue
to be used. India may also build a road above and or below the surface of the leased area in an
elevated or subway form for her exclusive use in a manner which will not prejudice free and
unfettered movement of Bangladesh citizens and goods as defined in para 1 and 4 above.

Clause 6:-
The two Governments shall co-operate in placing permanent market along the parameters of the
leased area and put up fences where necessary.

Clause 7:-
Both India and Bangladesh shall have the right to lay cables, electric lines, water and sewerage
pipes etc. over or under the leased area without obstructing free movement of citizens or goods
of either country as defined in parts 4 and 5 above.

Clause 8:-
The Modalities for implementing the terms of the lease will be entrusted to the respective Deputy
Commissioners of Rangpur (Bangladesh) and Cooch Behar (India). In case of Differences, they
refer the matter to their respective Governments for resolution.

Clause 9:-
In the event of any Bangladesh/Indian national being involved in an incident in the leased area,
constituting an offence in law, he shall be dealt with by the respective law enforcing agency of
his own country, in accordance with its national laws. In the event of an incident in the leased
area involving nationals of both countries the law enforcing agency on the scene of the incident
will take necessary steps to restore law and order. At the same time immediate steps will be
taken to get in track with the law enforcing agency of the other country. In such cases, any Indian
national apprehended by a Bangladesh law enforcing agency shall be handed over forthwith to
the Indian side and Bangladesh national apprehended by an Indian law enforcing agency shall be
handed over forthwith to the Bangladesh side. India will retain residual jurisdiction in the leased
area.