UNION OF INDIA Vs. SUDHANSV MAZUMDAR

JUDGEMENT

(1.) This is an appeal from a judgment of a learned singls judge of the Calcutta High Court who granted a certificate under Art. 132 (1) of the constitution. If involves primarily the question whether the cession of a teritory by India as a result of a treaty with Pakistan would be compulsory acquisition of the property comprised in that territory by the Union of India and would there fore, attract the provisions of Art. 31 of our Constitution.

(2.) At the outset it may be mentioned with reference to a preliminary objection which has been raised by the respondents that judgment under appeal was delivered by the learned single judge in a petition under Art 226 of the Constitution and it appears that on an oral prayer made to him he granted a certificate under Art. 132 (1) even though under the Letters Patent of the High Court an appeal lay to a division bench of that court. This court has said on an earher occasion in clear and unequivocal terms that the practice of a Single Judge deciding the case and giving a certificate under Art. 132 (1) for appeal to this court although technically correct, was an improper practice. The right of the parties to file an appeal in the High Court itself against the decision of the single judge should not be short-circuited. Indeed in R. D. Agarwala v. Union of India, Civil Appeals Nos. 2634 of 1969 and 63 of 1970 = (reported in AIR 1971 SC 299) the certificate was cancelled. In Union of India v. J. P. Mitter, Civil Appeal No. 52 of 1968 = (reported in AIR 1971 NSC 127) it was observed that a certificate by a single judge under Art, 132 (1) should be given in very exceptional cases where a direct appeal was necessary. Even though the present case may be of an exceptional kind we have been deprived of the benefit of the judgment of a larger bench of the High Court on points which are of substantial importance. Presumably a number of matters which had no bearing on the real questions to be determined and which have been dealt with by the learned single judge would have been either satisfactorily disposed of or would not have been the subject-matter of discussion by the Court being irrelevant and unnecessary, if the decision had been given by a larger Bench.

(3.) The facts may be shortly stated. On September 10, 1958, an agreement was entered into between the Governments of India and Pakistan called the Indo-Pakistan Agreement. Item No. 3 of the agreement related to Berubari Union No. 12 which was a croup of villages lying within the territory of India. This territory was to be so divided as to give one half area to Pakistan. The other half adjacent to India was to be retained by India. Subsequently a doubt arose whether the implementation of the agreement relating to Borubari Union required legislative action either by way of an Act of Parliament relatable to Article 3 of the Constitution or by way of a suitable amendment of the Constitution in accordance with the provisions of Article 368 or both. A similar doubt had also arisen in respect of another item of the agreement which related to the exchange of certain enclaves but with , which we are not concerned. The President of India made a reference to this court under Article 143 (1) of the Constitution for its advisory opinion. The opinion was delivered on March 14, 1960. (In Re; The Berubari Union and Exchange of Enclaves Reference Under Article 143 (1) of the Constitution of India, 1960-3 SCR 250 = (AIR 1960 SC 845) ). As mentioned in the advisory opinion Berubari Union No. 12 had an area of 8.75 Sq. Miles and a population of 10 to 12 thousand residents. It was situated in the district of Jalpaiguri. This court expressed the view that since the agreement between India and Pakistan amounted to cession of a part of the territory of India in favour of Pakistan its implementation would naturally involve the alteration of the content of and the consequent amendment of Article 1 and of the relevant part of the First Schedule to the Constitution which could be made only under Art. 368. Pursuant to the opinion delivered by this court the Parliament enacted the Constitution (Ninth Amendment) Act 1960 on December 28, 1960. In order to implement the provisions of the above Act a physical division of the Berubari Union in accordance with the agreement and demarcation of the portion that was to go to Pakistan was necessary. Some of the inhabitants of the Berubari Union filed a petition under Art. 226 of the Constitution challenging its proposed partition with the object of transferring its southern part to Pakistan. The writ petition was dismissed and an appeal was brought to this Court which was disposed of on August 11, 1965 . Ram Kishore Sen v. Union of India, 1966-1 SCR 430 = (AIR 1966 SC 644). It was held that the Ninth Constitution Amendment Act had been passed by the Parliament in the manner indicated in the advisory opinion of this Court. No merit was found on the other points which were agitated. The appeal was dismissed.