RAM KISHORE SEN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners Nos. 1 and 2 state that they are original inhabitants of the villages Senpara and Deuniapara respectively, which are within Berubari Union No. 12 in Thana Jalpaiguri, District of Jalpaiguri, within the State of West Bengal. The petitioners Nos. 3 and 4 state that they were originally inhabitants of villages situate in Thana Boda, adjoining Thana Jalpaiguri. When a portion of Thana Boda was included in Pakistan, they came over and settled in villages Senpara and Gonranga-bazar respectively, which are situated within the said Berubari Union No. 12. It is admitted by the respondents that the villages Senpara, Deuniapara and Gouranga Bazar are situated within Berubari Union No. 12. It is however contended that the whole of Thana Boda consisting of the Police Thanas Boda, Pachagarh and Debiganj became part of Pakistan under the Radcliff Award. The petitioners Nos. 5 and 6 state that they are original inhabitants of the village Chilahati, of the localities known respectively as Dakerkamath and Burujer Par. They state that it lies within Thana Jalpaiguri, but ft is not admitted by the respondent that this village lies within Thana Jalpaiguri. According to them it lies within Thana Debigunge, Revenue Thana Boda, and the whole of it has been included in Pakistan under the Radcliff award. It is admitted however that a portion of Chilahati is, for the present, being administered by India. A portion of Berubari Union No. 12 is being demarcated for being made over to Pakistan and it is also contemplated that possession of the aforesaid portion of Chilahati should be made over to its rightful owner, Pakistan. The circumstances under which this is being done will presently be mentioned. The petitioners state that they are being affected thereby and have made this application to prevent the respondents from either making the demarcations or making over possession, to Pakistan of any portion of Berubari Union No. 12 or of the portion of Chilahati mentioned above.

(2.) As the two areas mentioned above involve separate questions of fact and law, they will have to be considered separately. As regards the demarcation of the Berubari Union No. 12 it has been the subject matter of two previous decisions. The first in point of time is a decision of this Court Nirmal Bose v. Union of India. The second is a decision of the Supreme Court In re Berubari Union and Exchange of Enclaves etc., delivered under its advisory jurisdiction, upon a reference made to it by the President of India under Article 143(1) of the Constitution. All the necessary facts are set out in these decisions and may be briefly set out here.

(3.) On February 20, 1947 the British Government announced its intention to transfer power in British India to Indian hands by June 1948. On June 3, 1947 the said Government issued a statement as to the method by which the transfer of power would be effected. On July 18, 1947 the British Parliament passed the Indian Independence ACT, 1947. This Act was to come into force from August 15, 1947 which was the 'Appointed day'. As from the appointed day, two independent Dominions came into existence, namely India and Pakistan. Section 2 of the Act provided that, subject to the provisions of Sub-sections (3) and (4) of Section 2, the territories of India shall be the territories under the sovereignly of His Majesty, which immediately before the appointed day were included in British India, except the territories which under Sub-section (2) of Section 2 were to be the territories of Pakistan. Section 3 Sub-section (1) provided, inter alia, that as from the appointed day, the Province of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and there shall be constituted in lieu thereof two new provinces known respectively as East Bengal and West Bengal. Sub-section (3) of Section 3 provided, inter alia, that the boundaries of the new provinces aforesaid shall be such as may be determined, whether before or after the appointed day, by the award of a Boundary Commission appointed or to be appointed by the Governor-General in that behalf; but until boundaries are so determined, (a) the Bengal Districts specified in the First Schedule of the said Act ..... .shall be treated as the territories which were to be comprised as the new province of East Bengal, (b) the remainder of the territories comprised in the Province of Bengal are to be comprised in the new Province of West Bengal. The Province of West Bengal has now become the State of West Bengal and the Province of East Bengal has become a part of Pakistan and is now known as East Pakistan.