(1.) As I said in my Order on the application for contempt arising out of the instant proceeding, earlier, the dispute to which the instant proceeding relates has behind it a history of constitutional importance, which must be recounted in order to appreciate the nature of the present proceeding.
(2.) It is a dispute relating to the division between India and Pakistan of the Berubari Union No. 12, a group of villages lying within the territory of India, for the purpose of ceding half of it to Pakistan in pursuance of the Agreement, which was entered into between the two Governments on the 10th September, 1958. Some doubts having arisen as to whether this could be effected without a proper legislation, the President referred the question for the opinion of the Supreme Court, under Article 143(1) of the Constitution, and the Supreme Court gave its opinion as. The Supreme Court opined that since the Agreement between the two Governments, referred to earlier, involved "a cession of a part of the territory of India in favour of Pakistan" (p. 861 ibid.), it could be done only by an amendment of the Constitution under Article 368. As a result of this decision, Parliament enacted the Constitution (9th Amendment) Act, 1960, on the 28th December, 1960. The substance of this amendment was that the portion of the Berubari Union (one of the items included in the said Agreement), which was sought to be ceded to Pakistan, was to be demarcated and after this demarcation was made the Central Government would notify a date as the 'appointed day' from which the transfer would become effective and from that day item No. 14 of the First Schedule to the Constitution, which describes the territories of the State of West Bengal, would stand amended so as to exclude from the existing territories of the State, "the territories referred to in Part III of the First Schedule to the Constitution (9th Amendment) Act, 1960".
(3.) In short, the demarcation was to be made for the purpose of excluding from the territories of the State of West Bengal that portion of the Berubari Union which was sought to be ceded to Pakistan by the said Agreement. It would, in this context, be useful to refer to the definitions of "appointed day" and "transferred territory" as they appear in the Constitution (9th Amendment) Act, 1960:
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