RAM KISHORE SEN Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petition from which this appeal arises was filed by the six appellants who reside within the limits of Thana Jalpaiguri in the district of Jalpaiguri. To their petition, they had impleaded as opponents the four respondents, the Union of India, the Secretary of External Affairs, Government of India, the State of West Bengal, and the Collector of Jalpaiguri. The substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of Berubari Union No. 12 and the village of Chilahati to Pakistan and they urged that the said attempted transfer was illegal. That is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer. Appellants 1 and 2 are the original inhabitants of villages Senpara and Deuniapara respectively which are within the limits of Berubari Union No. 12. They own ancestral homes and cultivated lands in the said villages and they live in the homesteads. Appellants Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri; but when Thana Boda was transferred to Pakistan as a result of the partition in 1947, they came over to the villages of Senpara and Gouranga bazar respectively within the limits of Berubari Union No. 12; since then, they have acquired lands there and built their homesteads in which they live. Appellants Nos. 5 and 6 are the inhabitants of village Chilahati, and according to them, this village is situated in Thana Jalpaiguri. In this village, these two appellants have their ancestral homes and cultivated lands.

(2.) It is a matter of common knowledge that on September 10, 1956, an agreement was reached between the Prime Ministers of India, and Pakistan with a view to settle some of the disputes and problems pending between the two countries. This agreement was set out in the note jointly recorded by the Commonwealth Secretary, Ministry of External Affairs, Government of India, and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth Relations, Government of Pakistan. After this agreement was entered into, the President of India referred three questions to this Court for consideration and report thereon, under Art. 143 (1) of the Constitution, because he took the view that the said questions had arisen and were of such nature and of such importance that it was expedient that the opinion of the Supreme Court of India should be obtained thereon. (Spl. Ref. No. 1 of 1959, In re:Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250 at pp 256, 295-96 ). These three questions were thus formulated:-

(3.) As a result of the opinion thus rendered, Parliament passed the Constitution (Ninth Amendment) Act, 1960 which came into operation on December 28, 1960. Under this amendment, " appointed day" means such date as the Central Government may, by notification in the Official Gazette, appoint as the date for the transfer of territories to Pakistan in pursuance of the 'Indo-Pakistan Agreements' which means the Agreements dated the 10th September, 1958, the 23rd October, 1959, and the 11th January, 1960 entered into between the Governments of India and Pakistan. The relevant extracts from the said Agreements have been set out in the Second Schedule to the Ninth Amendment Act. The material portion of the said Schedule reads as follows:-