(1.) The litigation before me has a history behind it starting from 1959, when the first Petition under Art. 226 of the Constitution, brought by a resident of the territory known as 'Berubari' was dealt with by Sinha, J., (as he then was) of this Court in (1) Nirmal Bose v. Union of India, AIR 1959 Cal. 506. This petition was brought by one Nirmal Bose shortly after the Nehru-Noon Agreement hereinafter referred to as 'the Agreement') was executed on the 10th of September, 1958 (the relevant extracts from this Agreement are appended to the Constitution (Ninth Amendment) Act, 1960). This Agreement, in short, provided for the division of the Berubari Union No. 12 which was in the possession of the Union of India into two halves, - one of which was to go over to Pakistan. The petitioner complained that if this Agreement were implemented without legislation by the Indian Parliament, it would be depriving him of his property without legislation, which would be in contravention of the Constitution. The Court held that the Petition would have succeeded if the Petitioner could prove that Indian territory was going to be ceded without legislation by the Indian Parliament, but the materials presented by the Petitioner were insufficient to hold that the demarcation contemplated by the Agreement involved a cession of Indian territory to Pakistan as distinguished from the settlement of a boundary- dispute.
(2.) Subsequent to this decision, a controversy arose as to whether any legislation or constitutional amendment was necessary to implement the said Agreement and this led to a reference under Article 143(1) of the Constitution to the Supreme Court on the above question which was answered by the Court by its opinion reported in (2) AIR 1960 SC 845 : (1960) 3 SCR 250,- In re. Rerubari Union and Exchange of Enclaves. The Supreme Court opined that the Agreement in question involved a "cession of a part of the territory of India in favour of Pakistan" (p. 861, ibid) and that this could be effected only by an amendment of the Constitution under Article 368 and not by a mere Agreement. Parliament, accordingly, enacted the Constitution (Ninth Amendment) Act, 1960, on the 28th December 1960.
(3.) 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 (Ninth Amendment) Act, 1960."
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