NIRMAL BOSE Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this case is a citizen of India, having his permanent residence in the District of Jalpaiguri in the State of West Bengal. The subject-matter of this application is the proposed transfer to Pakistan of a portion of Berubari Union No. 12, which is now situated in Police Station, Jalpaiguri, District Jalpaiguri. In order to appreciate the exact nature of the dispute it is necessary to understand the facts relating to the proposed transfer, and for this purpose, a historical survey is inevitable. On 20-2-1947, the British Government announced its intention of transferring power in British India to Indian hands by June, 1948. On 3-6-1947 a statement was made by the said Government on the method of transfer of power in India. On 18-7-1947 the British Parliament passed the Indian Independence Act, 1947. This Act was to come into operation from the "appointed date," namely the 15th August, 1947. It was indicated that as from the 15th day of August, 1947 two independent Dominions shall be set up in India, to be known respectively as India and Pakistan. By Section 2 of the said Act, it was laid down that subject to the provisions of Sub-sections (3) and (4) of Section 2, the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed date, were included in British India, except the territories which under Sub-section (2) of Section 2 were to be the territories of Pakistan, I shall presently refer to the said Act once again, since it will have to be considered in greater detail. It will be appropriate to state here that so far as India is concerned. The Constituent Assembly, which at first sat on 9-12-1946 re-assembled after the midnight of 34-8-1947, as the Sovereign Constituent Assembly for India. On 13-12-1946 had been introduced the historic objective resolution of Sri Nehru, which was adopted on 22-1-1947. The Constituent Assembly next considered the salient principles of the proposed Constitution as outlined by various committees, and thereafter appointed a drafting committee on 29-8-1947. The drafting committee embodied the decision of the Assembly with alternative and additional proposals in the form of a "draft constitution" which was published in February, 1948. The draft was presented to the Constituent Assembly on 4-11-1948 and after three readings was finalised and received the signature of the President of the Assembly and declared as passed on 26-11-1949 and became the Constitution of India. A few of the articles contained in the Constitution as set out in Article 394 came into force at once, and the remaining provisions of the Constitution came into force on 26-1-1950 which day is referred to in the Constitution as the 'commencement of the Constitution.' For purposes of this application, our real starting point is the Indian Independence Act, 1947. I have already referred to certain portions of it. I shall now proceed to consider Section 3 thereof, which is the section which is really relevant for our purposes. The relevant part thereof is set out below:

(2.) The province of West Bengal has since become the State of West Bengal and India as the Indian Union has become an Independent Sovereign Republic. The Province of East Bengal has become East Pakistan.

(3.) Coming now to the First Schedule of the Indian Inpendence Act 1947, we find that the District of Jalpaiguri has not been mentioned. If the matter stood there, the whole of the district of Jalpaiguri including the Berubari Union would have come to West Bengal. The fact however is that the first Schedule to the Act never came into operation at all. So far as Bengal is conoerned. I have already mentioned that the Indian Independence Act, 1947 was passed on 18-7-1947 and the appointed date when the two independent dominions were to come into existence was 15-8-1947. Under Sub-section (3) of Section 3 of the Act, the boundaries between the two new provinces of East Bengal and West Bengal were as specified in Sub-section (3) read with the First Schedule, until it was determined by an award of the Boundary Commission appointed by the Governor General to demarcate the boundary. Under Sub-section (3) of Section 3 read with the First Schedule, the District of Jalpaiguri fell wholly within the province of West Bengal, which has subsequently become the State of West Bengal. In point of time however, the award of a Boundary Commission known as the "Radcliffe Award" came into existence on 12-8-1947, that is to say, before the appointed date. Thus, at no point of time did the First Schedule to the Indian Independence Act 1947 come into operation so tar as Bengal is concerned. I shall now say a little more about the "Radcliffe Award". On 30-6-1947 an announcement was made by the Governor General, published in the Gazette of India (Extraordinary), stating that in accordance with the provisions of paragraphs 5 to 8 of the statement made by His Majesty's Government dated 3-6-1947 it had been decided that the province of Bengal and Punjab shall be partitioned. The Governor General accordingly appointed inter alia, a Boundaary Commission for Bengal, consisting of four judges of the High Court and a Chairman to be appointed later. The Chairman appointed later was Sir Cyril Radcliffe. So far as Bengal was concerned the terms of reference were as follows: