Holding

The 1974 and 1982 agreements did not constitute a cession of territory or surrender of sovereignty, the Ninth Amendment had not come into effect, and therefore no constitutional amendment was required; the Division Bench’s directions to amend the Constitution and acquire land were set aside.

Summary

The case concerned the implementation of the 1974 and 1982 India‑Bangladesh agreements concerning the lease of a small tract of land (Teen Bigha) to enable Bangladesh’s access to its enclaves Dahagram and Angarpota. The petitioners argued that the agreements amounted to a cession of Indian territory and a surrender of sovereignty, requiring a constitutional amendment under Article 368, and that the Ninth Amendment to the Constitution had already effected the transfer of the Berubari Union. The Supreme Court held that the agreements did not constitute a cession or surrender of sovereignty, that the Ninth Amendment had never come into force because no "appointed day" was notified for the eastern border, and therefore no constitutional amendment was required. Consequently, the Division Bench’s directions to amend the Constitution and acquire land were set aside. The appeal was allowed in part, deleting those directions.

Issues considered

The agreements of 1974 and 1982 amount to a cession of Indian territory or surrender of sovereignty requiring a constitutional amendment.
Whether the Ninth Amendment to the Constitution had come into force for the eastern border (Berubari Union) and thus effected the transfer of territory.
Whether the 1958 India‑Pakistan agreement automatically transferred the enclaves in the absence of an appointed day.
Whether the expression "lease in perpetuity" creates a lease or licence under Indian law or merely a servitude under international law.
Whether the Division Bench could direct amendment of the Constitution and acquisition of land.

Legislation cited

44th Amendment Act, 1978s. 1(2)
Constitution (Ninth Amendment) Act, 1960
Constitution of Indias. 1, s. 3, s. 368, s. 394
Indian Independence Act, 1947

Subjects

boundary disputeenclavecession of territorysovereigntyconstitutional amendmentArticle 368Ninth Amendmentlease in perpetuityinternational lawIndia‑Bangladesh treatyBerubari UnionDahagramAngarpota

Judgment

A UNION OF INDIA AND ORS.
v.
SUKUMAR SENGUPTA AND ORS.

MAY 3, 1990
B [SABYASACHI MUKHARJI, CJ., M.H. KANIA,
K. JAGANNATHA SHETIY, K.N. SAIKIA AND
S.C. AGRAWAL, JJ.]

Constitution of India, 1950: Articles 1, 3, 368 and Constitution ;.·
(Ninth Amendment) Act, 1960-Agreements of 1974 and 1982- Y
C Implementation of-Teen Bigha-Whether involves cession of Indian
territory to Bangladesh-Sovereignty over Dahagram and
Angarpota-Whether arises.

The Indian Independence Act, 1947 had set up two independent
dominions known as 'India' and 'Pakistan'. A Boundary Commission
D was appointed to determine the boundaries of the two dominions. As a
result of its Award, certain areas of India became, after the partition,
enclaves in East Pakistan. Similarly, certain East Pakistan enclaves
were found in India. Dehagram and Angarpota were two such Pakistani
enclaves in India.

E In view of the Award, Berubari Union No. 12 was treated as part
of the Province of West Bengal. Near about 1952, Pakistan· alleged that
under the Award the Berubari Union should really have formed part of '
East Bengal. Eventually, in 1958 the Prime Ministers of India and
Pakistan entered into an agreement settling certain boundary disputes.

F
The agreement inter alia provided for the division of Berubari Union
No. 12 between India and Pakistan and exchange oflndian enclaves in
Pakistan and Pakistan enclaves in India.
r
Donbts arose regarding the implementation of the 1958
agreement. Therefore, in exercise of the powers conferred upon him by
clause ( 1) of Article 143 of the Constitution, the President of India
G referred the matter to the Supreme Court.

In the light of the opinion rendered by the Supreme Court in Re:
The Berubari Union and Exchange of Enclaves, [1960] S.C.R. 3 250, the
Constitution (Ninth Amendment) Act, 1960 was passed to give effect to
the transfer of the territories as envisaged in the 1958 agreement. ,~
H

24
U.0.1. v. SUKUMAR SENGUPTA 25

• By an official notification, 17th January 1961 had been appointed
as the day for the transfer of the territories of India by way of exchange A
with the territories of Pakistan in the western region. No further
appointed day was notified so far as the eastern border of India was
concerned.

In 1966, writ petitions challenging the validity of the transfer of B
territories as stipulated in the Ninth Amendment were dismissed by this
Court in Ram Kishore Sen & Ors. v. Union of fodia, l1966]
1 S.C.R. 430.

On or about the 16th May, 1974 an agreement was entered into
between the Prime Ministers of India and Bangladesh. This agreement
inter alia provided that India will retain half of Berubari Union No. 12, c
which under the 1958 agreement was to be transferred to Pakistan, and
in exchange Bangladesh will retain the Daha~ram and Angarpota
enclaves. The agreement further provided that India will lease in
perpetuity to Bangladesh a small area near 'Tin Bigha' for the
purpose of connecting Dahagram and Angarpota with Panbari Monza D
of Bangladesh. The 1974 agreement, however remained unimple-
~ented.

Thereafter, in October 1982 an u11derstanding was reached
between the two governments in respect of 'lease in perpetuity' by
I India of the said area near 'Tin Bigha' to enable the Bangladesh govern- E
ment to exercise her sovereignty over Dabagram and Angarpota. It was
further agreed that the 1982 agreement would be an integral partofthe
earlier agreement of 197 4. It was also agreed that the sovereignly over
the leased area shall continue to vest in India.

Clause 9 of the 1982 ~greement provided that India would have no F
jurisdiction over Bangladesh nationals in respect of any offence
committed in the area, and the same shall be dealt with by the
Bangladesh law enforcing agency only.

In 1983, Writ Petitions were tiled in the Calcutta High Court
challenging the validity of the agreement. The learned Single Judge G.
dismissed the writ petitions (Sugandhra Roy v. Union of India, A.I.R.
1983 Cal. 483). The learned Single Judge held that (i) Ninth Amend-
ment in so far as it related to exchange of the enclaves in eastern India
had not come into being; (ii) implementation of the agreements of 1974
and 1982 did not involve cession of any Indian territory to Bangladesh;
. (iii) no exclusive or legal possession of Tin Bigha was being transferred H
26 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

A to Bangladesh; (iv) there was no question of transfer of sovereignty of
India wholly or partially in respect of the said area; (v) certain
privileges only had been conferred on Bangladesh and its nationals
under the said agreement which otherwise they would not have; (vi) as
Dahagram and Angarpota would remain as parts of Bangladesh terri-
tory, the agreements were necessary to enable Bangladesh to exercise its
B sovereignty in full over the said enclaves; and (vii) in spite of the said
agreements India would retain sovereignty, ownership and control over
Tin Bigha.

Regarding clause 9 of the 1982 agreement, the learned Single
Judge held that the conferment of this power under the agreement to
Bangladesh and abdication of any such power by India, by itself, did
C not amount to transfer of sovereignty in respect of the area. The learned
Single Judge, however, noted that merely by virtue of the agreement
and without any amendment of the existing Indian Jaw it might not be
legally possible to take away existing jurisdiction of the Jaw enforcing
agencies of India or the Indian courts.
D
An appeal was filed before the Division Bench. It was contended
before the Division Bench that (i) the 1974 agreement speclt1cally pro-
vided that the same would b.e suitably retified but it had not been
ratified; (ii) in the absence of any ratification of the agreement of 1974,
India and Bangladesh conld not enter into the subsequent agreement in
E 1982 on the basis of the agreement of 1974; (iii) by reason of the agree- \
ment of 1958 between India and Pakistan, which was sanctioned by the
Ninth amendment to the constitution, there was automatic exchange of
the Pakistani enclaves in the eastern part of India with the Indian
enclaves in eastern Pakistan; (iv) neither India nor Bangladesh had
formally terminated the treaty of 1958 and as such in so far as the
F provJsions of the said agreement of 1958 concern Berubari union No. 12
and the Cooch Behar enclaves, including Dahagram and Angarpota,
they could not be given a go-by in the manner purported to have been
done, and a further amendment to the Constitution was necessary; and
(v) the use of the expression 'residual jurisdiction' in clause 9 of the
agreement of 1962 indicated that Indian only retained residnal
G sovereignty over the area and the defacto and real sovereignty in the
area had been surrendered to Bangladesh.

The Division Bench repelled these contentions. The Bench how-
ever was of the view that the agreements of 1974 and 1982 providing for
exchange of territories would have to be noted in the relevant schedules
J-I to the Constitution before any appointed day could be notified in .
U.0.L v. SUKUMAR SENGUPTA 27

respect of the territories to be transferred to Bangladesh. According to
A
the Division Bench, this was necessary in order to retain Berubari in
India.

Disposing of the appeal, this Court,

HELD: ( 1) The Division Bench came to the correct conclusion that B
in so far as the eastern border of India was concerned, the Ninth
Constitutional amendment had not become part of the Constitution as
no appointed day had been notified, and in that view of the matter, the
decision to allow Bangladesh to retain Dahagram and Angarpota under
the 1974 and 1982 agreements did not amount to cession of Indian
territory in favour of Bangladesh. [45A-B I -
c
A.K. Roy, etc. v. Union of India & Anr., [1982] 2 S.C.R. 272;
Maganbhai Ishwarbhai Patel v. Union of India & Anr., [1969] 3 S.C.R.
254, referred to.

(2) The Division Bench was pre-eminently right in arriving at the D
conclusion that there was no automatic transfer of Dahagram and
Angarpota to India under the 1958 agreement in the absence of a
110tified appoin .•'fl day, and consequently both defacto and dejure these en-
claves remained part of East Pakistan and subsequently Bangladesh. I44G-H]

(3) The Division Bench had held that the agreements of 1974 and E
1982 did not amount to cession of territory or abandonment of
sovereignty. If that is the position, no constitutional amendment was
required for the arrangements entered into either by the agreement of
1974 or 1982. The Division Bench was therefore in error in expressing a
contrary view. [44B-C]
F
(4) In that view of the matter, the agreements of 1974 and 1982
did not require to be suitably notified or included in the official
gazettee. Therefore, there was no cause to direct the legislature to
amend or pass suitable laws. l52B]

State of Himachal Pradesh v. Urned Ram Sharma, [1986] 2 G
S.C.C. 68; State of Himachal Pradesh v. A parent of a Student of Medi-
cal College, Simla & Ors., [1985] 3 S.C.R. 676, referred to.

(5) The expression 'lease iit perpetuity' has to be understood in
the context of and with reference to the objects of the agreement. The
object of the lease was to allow access to Bangladesh to Daba~ram and H
28 SUPREME COURT REPORTS [1990l 3 S.C.R.

A Angarpota for the purpose of exercise of her sovereignty over and in the
said areas •. Having examined the rights in the agreements, these do not .,;::
amonnt to lease or surrender of sovereignty as understood in the inter-
nationallaw. [47B-D]

B Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R.
368, referred to.

(6) The Division Bench rightly held that the recital in a deed
conld not operate as an estoppel against the specific terms and condi-
tions thereof. On a construction of the agreements, the Division Bench
came to the correct conclusion that the agreements of 197 4 and 1982
C together in their entirety must be judged. [47F]

(7) An agreement between two countries might be ratified not
only by a -subsequent formal agreement but by actual implementation or
by conduct, and read properly, the subsequent agreement did ratify the
previous agreement. [46G-H]
0
(8) The Division Bench rightly held that under the said
agreements, specific and limi~ed rights were being granted to
Bangladesh. Such rights were not exclusive and the aggregation thereof
would not amount to a lease, as is commonly understood in favour of
Bangladesh. [49D-E]
E
(9) Certain restrictions had been imposed on India over its abso-
lute sovereignty in the area to serve the purpose in favour of and in the
interest of Bangladesh. These are, however, self-imposed restrictions.
On a proper constrnction of the agreements of 1974 and 1982 and the
-r
'
individual clauses, it cannot he said that as a result of the said agree-
F ment, India had surrendered its sovereignty over the said area of Teen
Bigha in favour of Bangladesh or that Bangladesh has become the
sovereign over the said territory to the exclusion oflndia. [49G-H]

(JO) Sovereignty is a quality of right. It is a bundle of rights. It
depends on the facts and the circumstances of each case. Apart from
G anything else, the specific clause in the agreement of 1982 that
sovereignty over the area shall continue to vest in India stands in the
way of a contrary construction. [SOA-B J

Panama Canal's case Hudson Cases & Ors. Materials on interna-
H tional Law, 3rd Edition, 1951 pp 222-3, distingnished.
U.0.1. v. SUKUMAR SENGUPTA 29

(11) 'Sovereignty' has been defmed as "the snpreme authority' in
an independent political society. It is essential, indivisible and A
illimitable. However, it is now considered and accepted as both
divisible and !imitable. Sovereignty is limited externally by the
possibility of a general resistance. Internal soverejgnty is para-
mount power over all action, and is limited by the nature of the power
itself. [41E-F] B

( 12) In the present and modern context sovereignty has and must
have a more restrictive meaning than it had in the earlier centuries
when on the emergence of individual national States, no limits on the
power of States, were acknowledged. Any State in the modern times has
to acknowledge and accept customary restraints on its sovereignty
inasmuch as no State can exist independently and without reference to c
other States. Under the general international law the concept of inter-
dependence of States bas come to be accepted. Ev.en without the said
agreements of 1974 and 1982, so long as Dahagram and Angarpota
remain part of Bangladesh, the latter under the general international
law and customs would have a right to access to the said enclose through D
the territory oflndia. [SOC-E]

(13) Amicable and peaceable settlement of boundary disputes are
in the interests of the international community. The older and absolute
ideas of sovereignty and independence has thus necessarily to be
modified in the dawn of the 21st century. A perpetual right to passage E
and other incidental rights given to Bangladesh for the limited purpose
for exercising the sovereignty over her own two enclaves within the
territory of India and /or if imposed restrictions on itself by India does
not tantamount to transfer of interests in India. [52E-F J

CIVIL APPELLA1E JURISDICTION: Civil Appeal Nos. 2833-35 F
of 1987.

From the Judgment and Order dated 19. 9 .1986 of the Calcutta
High Court in A.F.O. No. 102 of 1984 in M.A. Nos. 3036 and 3062 of
1983.

Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional
G I
Solicitor General, Gopal Subramanium, Ms. A. Subhashini an\! P.
Parmeshwaran for the Appellants.
f
S.S. Khanduja, Y.P. Dhingra and. B.K. Satija lfor the
Respondents. H
30 SUPREME COURT REPORTS (19901 3 S.C.R.

A
The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, CJ. This appeal by special leave
arises from the judgment and order of the Division Bench of the High
Court of Calcutta dated 19th September, 1986.

B The Indian Independence Act, 1947 (hereinafter referred to as
'the Act') was passed by the British Parliament. This Act came into
force on and from 15th Augusl,.1947, which was the appointed day and
under the Act, as from the appointed day, two independent dominions
were to be set up in place of the existing India known, respectively as
'India' and 'Pakistan'. Two independent dominions were set up in
place of the existing Indian Union. Section 3(1) of the Act provided,
c 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 in lieu thereof two new provinces known respectively as 'East
Bengal' and 'West Bengal' shall be constituted under section 3(3) of
the Act. Under section 3(3)' of the Act, it was provided that the
D boundaries of the new provinces as 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 Gover-
nor General in that behalf. On 30th June, 1947, the Governor General
made an announcement that it had been decided that the Province of
Bengal and Punjab shall be partitioned. Accordingly, a Boundary
E Commission was appointed, inter alia, for Bengal consisting of Sir
Cyril Radcliffe as the Chairman. So far as Bengal was concerned, the
material terms of reference provided that the Boundary Commission
should demarcate the boundaries of the two parts of Bengal on the
basis of, inter alia, the contiguous areas of Muslims and non-Muslims.
The Commission held its enquiry and made an award on August 12,
F 1947, i.e., three days before the appointed day. The Chairman gave his
decision regarding the demarcation of boundary line in respect of Dis-
trict of Darjeeling and Jalpaiguri i.n para 1 ofAnnexure 'A' which
provided that a line was to be drawn in a particular manner. The
Award directed that the District of Darjeeling and so much of the
District of Jalpaiguri as lies north of the said line shall belong to West
G Bengal but the Thana of Phatgram and any other portion of Jalpaiguri
. District, which lies to the East or South, shall belong to East Bengal.
Problem arose subsequently regarding the Berubari Union No. 12
Which was situated in the Police Station Jalpaiguri in the District of
Jalpaiguri, which was at the relevant time a part of Raisahi Division of
Bengal. After the partition, Berubari Union formed part of the State
of West Bengal and had been governed as such. The Constitution of
U.0.L v. SUKUMAR SENGUPTA [MUKHARJI, J.[ 31

lndia was declared to be passed on 26th November, 1949. As provided
A
by Article 394 of the Constitution, only certain Articles came into
force as from that date and the remaining provisions came to be in
force from January 26, 1950. Article 1 of the Constitution provided
that India, that is, Bharat shall be a Union of States and that the States
and the territories thereof shall be the States and their territories
specified in Parts A, B and C of the First Schedule. West Bengal was B
shown as one of the States in Part A. It was further provided that the
territories of the State of West Bengal shall comprise the territory
which immediately before the commencement of the Constitution was
comprised in the Province of West Bengal. As already pointed out in
view of the said award, Berubari Union No. 12 was treated as part of
the Province of West Bengal and as such has been treated and gover-
ned on that basis. Subsequently, certain boundary disputes arose
c
between India and Pakistan and a Tribunal was set up for the adjudica-
tion and final decision of the said disputes. However, the same had
·- nothing to do with the present case and the question of Berubari
Union or the Cooch Behar enclaves or Pakistani enclaves in the east
was not the subject-matter of the same. But the said question was D
raised by the Government of Pakistan in the year 1952. Admitted
position is that during the whole of this period, the Berubari Union
continued to be in the possession of the Indian Union and was gover-
ned as part of West Bengal. Near about 1952, Pakistan alleged that
under the Award, the Berubari Union should really have formed part
/ of East Bengal. In September, 1949, Cooch Behar had become part of E
the territory of India and was accordingly included in the list of Part C
States at Serial No. 4 in the First Schedule to the Constitution. On the
31st December, 1949, the States Merger (West Bengal) Order, 1949,
was passed. It was provided in the ~aid order, inter alia, that Indian
state of Cooch Behar would be administered in all respects as if it was a
part of the Province of West Bengal, on and from the 1st January, F
1950, thereby the erstwhile State of Cooch Behar was merged with
West Bengal and began to be governed as if it was a part of West
Bengal. The State of Cooch Behar was thereafter taken out of the list
of Part C States, in the First Schedule to the Constitution and added to
West Bengal in the same Schedule. Certain areas which formed part of
the territories of the former Indian State of Cooch Behar and which G
had subsequently become part of the territories of India and then of
West Bengal became after the partition enclaves in Pakistan. Simi-
larly, certain Pakistan enclaves were found in India. Dahagram and
Angarpota (now Bangladesh), were the Pakistani enclaves in India.
The Prime Ministers of two countries entered into an agreement settl-
ing certain disputes including the Berubari Union and the enclaves iI). H
32 SUPREME COURT REPORTS [1990] 3 S.C.R.

the East Pakistan in 1958. Two items in Para 2 of the said Agreement
A
were items 3 and 10. These were as follows:

"Item No. 3:-Berubari Union No. 12

'This will be so divided as to give half the area to Pakistan,
B the other half adjacent to India being retained by India.
The Division of Berubari Union No. 12 will be horizontal,
starting from the north-east comer of Debiganj Thana. The
division should be made in such a manner that the Cooch-
Behar enclaves between Pachagar Thana of West Bengal
will remain connected as at present with Indian territory
and will remain with India. The Cooch-Behar Enclaves
c lying between Boda Thana of East Pakistan and Bernbari
Union No. 12 will be exchanged along with the general
exchange of enclaves and will go to Pakistan."

Item No. JO:-"Exchange of old Cooch-Behar Enclaves in
D Pakistan and Pakistan Enclaves in India without claim to
compensation for extra area going to Pakistan, is agreed
to."

Subsequently, there was doubt as to whether the implementation
of the 1958 Agreement relating to Bernbari Union and the exchange of
E Enclaves requires any legislative action either by way of a suitable law
of the Parliament relatable to Article 3 of the Constitution or in
accordance with the provisions of Article 368 of the Constitution or
both. Accordingly, in exercise of the powers conferred upon him by
clause (1) of Article 143 of the Constitution, the President of India
referred the following three questions, to this Court for consideration:
F
(1) Is any legislative action necessary for the implementa-
tion of the agreement relating to Berubari Union?

(2) If so, is a law of Parliament relatable to Article 3 of the
Constitution sufficient for the purpose or is an amendment of the
G Constitution in accordance with Article 368 of the Constitution
necessary in addition or in the alternative?

(3) Is a law of Parliament relatable to Article 3 of the
Constitution sufficient for implementation of the agreement
relating to the exchange of Enclaves or is an amendment of the
H Constitution in accordance with Art. 368 of the Constitution
U.0.1. v. SUKUMAR SENGUPTA IMUKHARJI, J.J 33

necessary for the purpose in addition or in the alternative?
A

This Court answered the questions as follows. So far as question
no. 1 was concerned, it was answered in affirmative. So far as second
question was concerned, this Court answered it by saying that a law of
Parliament relatable to Art. 3 of the Constitution would be incompe-
tent and a law of Parliament relatabie to Art. 368 of the Constitution is B
competent and necessary and also by saying that a law of Parliament
relatable to both Article 368 and Art. 3 would be necessary only if
Parliament chooses first to pass a law amending Art. 3 as indicated
above; in that case Parliament may have to pass a law on those lines
under Art 368 and then follow it up with a law relatable to the
amended Art. 3 to implement the agreement. Question No. 3 was also
answered as aforesaid. The said decision is reported in Re. The c
Berubari Union and Exchange of Enclaves [1960) SCR 3 250. Ninth
Amendment to the Constitution was made thereafter. The Objects
and Reasons of the Constitution (Ninth Amendment) Act, 1960 stated
that th~ Inda-Pakistan agreements dated September 10, 1958, October
23, 1959, and January 11, 1960, which settled certain boundary dis- D
putes relating to the borders of the State of Assam, Punjab and West
Bengal, and the Union Territory of Tripura involved transfer of cer-
tain territories to Pakistan after demarcation. The Act amended the
Constitution to give effect to the transfer of those territories. After
setting out the title of the Act, which was called the Constitution
(Ninth Amendment) Act, 1960, it provided the definitions and amend- E
/ ments to the First Schedule to the Constitution. In 1966, writ petitions
were filed challenging the validity of the proposed demarcation as also
raised the question as to whether the proposed transfer of Berubari
Union would result in deprivation of citizenship and property without
compensation. The writ petitions were dismissed eventually by this
Court. The said decision is reported in Ram Kishore Sen & Ors. v. F
Union of India & Ors., [1966) 1SCR430.

In 1971, a sovereign independent State known as 'Bangladesh'
came into existence which comprised of the territory previously known
as East Pakistan or East Bengal. On or about the 16th May, 1974, an
agreement was entered into by and between the Prime Ministers of G
India and Bangladesh regarding the land boundary and related matters
including transfer of enclave's. Article 1 para 12 of the said Agreement
provided that Indian enclaves in Bangladesh and Bangladesh enclaves
in India should be exchanged expeditiously excepting the enclaves
mentioned in para 14 without claim to compensation for the additional
area, going to Bangladesh. Thereafter, an understanding was reached H
34 SUPREME COURT REPORTS I1990] 3 S.C.R.

in October, 1982, between the two Governments m connection with
A
the "lease in perpetuity" in terms of item 14 of Article 1 of the 1974
Agreement. In 1983, writ petitions were filed in the Calcutta High
Court. In September, 1983, the learned Single Judge of the Calcutta
High Court dismissed the writ petitions holding, inter alia, that
the implementation of the 1974 .and 1982 agreements did not involve
B cession of Indian territory to Bangladesh. The said judgment in
Sugandha Roy v. Union of India & Ors., is reported in AIR 1983 Cal.
at p. 483. It was held therein that there being no Gazette Notification
fixing any "appointed day" within the meaning of Ninth Constitution
Amendment in respect of the Eastern India, particularly the Berubari
Union and the Pakistani enclaves, and no Gazette Notification having
yet been issued, it was clear that 9th amendment so far as it related to
c exchange of the enclaves in Eastern India has not come into effect by
virtue of the said Ninth Amendment in view of the fact that it was
expressly provided in the said 9th Amendment that only from the
"appointed day" the Schedule to the Constitution shall be amended
and there being no "appointed day" in respect of the territories in th~
D Eastern India, the First Schedule to the Constitution remained un-
amended in so far as eastern India is concenred particularly the
Berubari Union and the enclaves of the Dahagram and Angarpota
and, as such, neither in fact nor in law there was any accession to India
in respect of the two enclaves and they remained part of Pakistan (now
Bangladesh) as they were before in spite of 1958 Nehru-Noon Agree-
E ment and Ninth Amendment. Therefore, the implementation of the
1974 and 1982 Agreements which provided, inter alia, that the two
enclaves would not be exchanged would not amount to cession of any
Indian territory which would require any Constitutional amendment.
Even if one proceeded on the basis of the 1958 agreement entered into
by India and Pakistan so far as it related to the territories of eastern
F India remained effective and valid after the emergence of Bangladesh.
It was open to India and Bangladesh to enter into a fresh treaty
modifying the 1958 agreement and that was actually what had
happened in the present case. India and Bangladesh had, by the said
1974 and 1982 agreements and to the extent indicated therein tenni-
nated and/or modified the earlier Treaty of 1958 in respect of inter
G alia, southern portion ofBerubari Union and the two enclaves in ques-
tion. In such a case, even if it could be said that it was the obligation
of the Government of India to make endeavour to foster respect for
the 1958 treaty as contemplated by Article 51(c) that did not prevent
the Government of India from entering into the 1974 and 1982 agree-
ments and modifying the earlier treaty particularly having regard to
H the fact that the 1958 agreement so far as it related to transfer of
U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 35

southern portion of Berubari Union and the exchange of enclaves in A
question was not given effect to any time and the Ninth Amendment to
that effect was never brought into force. The Court, further, held
that when by 1974 agreement read with 1982 agreement Bangladesh
Government had been given the facility of using the Indian area
known as "Teen Bigha" in the manner contemplated by those agree-
ments to be discussed in detail later, the implementation of those two B
., agreements would not involve cession of any territory to Bangladesh in
respect of Teen Bigha. Not merely that no exclusive possession of that
'---( area was sought to be transferred to Bangladesh and no legal posses-
sion at all was being transferred. There was no question of transfer of
sovereignty, wholly or partially, in respect of the said area. What had
merely been done was to enable the Government of Bangladesh and
its nationals to exercise certain rights in respect of the said area,
c
i.e., Teen Bigha, which otherwise they would not havP. been entitled to
do. That was being so allowed because instead of exchange of these
enclaves along with others as contemplated by 1958 Agreement, it was
a~reed that these two enclaves would remain as part of Bangladesh.
The Court, further, held that it was clear that the reason was that in D
spite of the 1958 agreement and in spite of the Ninth Amendment,
which had not been given effect to, the southern portion of Berubari
Union had to be retained by India. As these two enclaves were to
remain as part of Bangladesh territory, these two agreements had
made some provisions to enable Bangladesh to exercise its sovereignty
/ in full over these two enclaves. This is also clear by 1982 agreement, E
the Court held. Thus, the imolementation of these two agreements, so

------., far as Teen Bigha was concerned,. did not amount to cession of the said
territory or transfer of sovereignty in respect of the same and did not
require any constitutional amendment.

J-
There was an appeal before the Division Bench of the High
Court. The Division Bench referred to the relevant authorities and the
F
.i
f

interpretation of 1974 and 1982 agreements made by the learned Single
Judge which were not .disputed before the Division Bench. The Divi-
sion Bench in judgment under appeal affirmed the decision 0f the
learned Single Judge. The findings and interpretation of the agree-
ments of 1974 and 1982 were also not disputed before us. We are also G
of the opinion that that is the correct position in law and on facts.

---'· As mentioned hereinbefore, on or about 16th May, 1974, an
agreement was entered into by and between Government of India and
the Government of the People's Republic of Bangladesh. The said
agreement was signed by late Smt. Indira Gandhi, as the then Prime H
36 SUPREME COURT REPORTS [1990] 3 S.C.R.

Minister of India for and on behalf of the Government of India and
A
Sheikh Mujibar Rehaman, the then Prime Minister ofBangladesh,
signed the said agreement for and on behalf of the Government of
People's Republic of Bangladesh. It was recorded in the preamble of
the agreement that the same concerned the demarcation of the land
boundary between India and Pakistan and related matters, and that
B the two Governments were aware that friendly relations were existing
between the two countries and that it was desired to dMine the
boundary more accurately at certain points and to complete the
demarcation thereof. Items 12 and 14 of Article 1 of the Agreement
relevant to the proceedings before us, as mentioned before, were as
follows:
c "Item No. 12:-

The Indian enclaves in Bangladesh and the Bangladesh en-
claves in India should be exchanged expeditiously, except-
ing the enclaves mentioned in paragraph 14 without claim
D to compensation for the additional, area going to
Bangladesh."

Item No. 14:-

"lndia will retain the southern half of south Berubari Union
E No. 12 and the adjacent enclaves, measuring an area 2.64
square miles approximately, and in exchange Bangladesh
will retain the Dahagram and Angarpota ·enclave. India
will lease in perpetuity to Bangladesh and area of approxi-
mately 178 metres x 65 metres near 'Tin Bigha' to connect
Dhagram with Panbari Mouza (S. Patram) of Bangladesh."
F
Article 5 provided that the agreement shall be subject to notifica- -'..
tion by the Government of India and Bangladesh and Instruments of
rectification shall be exchanged as early as possible. It may,
however, be stated as was noted by the Division Bench of the Calcutta
High Court that the agreement dated 11th May, 1974 was also not
G implemented. Subsequently, letters passed between the Ministry of
Foreign Affairs, Government of Bangladesh and the Ministry of Ex-
ternal Affairs, Government of India, both dated the 7th October, 1982
in which it was recorded that with reference to the earlier agreement ?---
between Government of Bangladesh and the Government of India
concerning the demarcation of land boundary between the two
H countries, signed on the 16th May, 1974, the following understanding
'
U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 37

had been reached between the two Governments in respect of lease in
perpetuity by India of the said area of 178 metres x 85 metres near
A
'Teen Bigha' to connect Dahagram with Mouza Panbari in Bangladesh.
The understanding recorded was as follows:

"Clause 1:-
B
"The lease in perpetuity of the aforementioned area shall
be for the purpose of oonnecting Dahagram and Angarpota
with Panbari Mouza (P.S. Patgram) of Bangladesh to
enable the Bangladesh Government to exercise her sover-
eignty over Dahagram and Angarpota."

Clause2:- c
"Sovereignty over the leased area shall continue to vest in
India. The rent for the lease area shall be Bangladesh Re.1
(Bangladesh Taka one) only per annum. Bangladesh shall
not however be required to pay the said rent and Govern- D
ment of India hereby waives its right to charge such rent in
respect of the leased area."

Clause3:-

/ "For the purposes stated in para 1, Bangladesh shall have E
undisturbed possession and use of the area leased to her in
perpetuity."

Clause4:-

"Bangladesh Citizens including Police, Para Military and. p
Military personnel along with their arms, ammunition
equipment and supplies shall have the right of free and
unfetttered movement in the leased area and shall not be
required to carry passports or travel documents of any
kind. Movement of Bangladesh goods through the leased
area shall also be free. There shall be no requirement of G
payment of customs duty tax or levy of any kind what-
soever or any transit charges.

Clause5:-

"Indian citizens including police, par Military and H
38 SUPREME COURT REPORTS [1990] 3 S.C.R.

Military personnel along with arms ammunition equipment
A
and supplies shall continue to have right of free and un-
fettered movement in the leased area in either direction.
Movement of Indian goods across the leased area shall also
be free. For purpose of such passage the existing road run-
ning across it shall continue to be used. India may al;;D
B build a road above and or below the surface of the leased
area in an elevated or subway form for her exclusive use in
a manner which will not pre ju dice free and unfettered r
movement of Bangladesh citizens and goods as defined in Y
para 1and4 above.

Clause 6:-"The two Governments shall co-operate in
c placing permanent market along the parameters of the
leased area and put up fences where necessary."

Clause7:-

D "Both India and Bangladesh shall have the right to lay
cables, electric lines, water and sewerage pipes etc. over or
under the leased area without obstructing free movement
of citizens or goods of either country as defined in parts 4
and5 above.

E Clause8:-

"The Modalities for implementing the terms of the lease
will be entrusted to .the respective Deputy Commissioners
of Rangpur (Bangladesh) and Cooch Behar (India). In case
of Differences, they refer the matter to their respective
F Governments for resolution.

Clause 9:- "In the event of any Bangladesh/Indian national
being involved in an incident in the leased area, constitut-
ing an offence in law, he shall be dealt with by the respec-
tive law enforcing agency of his own country, in accordance
G with its national laws. Ia the event of an incident in the
leased area involving nationals of both countries the law
enforcing agency on the scene of the incident will take
necessary steps to restore law and order. At the same time
immediate steps will be taken to get in track with the law
enforcing agency of the other country. In such cases, any
H Indian national apprehended by a Bangladesh law enforc-
U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 39

ing agency shall be handed over forthwith to the Indian
A
side and Bangladesh national apprehended by an Indian
law enforcing agency shall be handed over forthwith to the
Bangladesh side. India will retain residual jurisdiction in
the leased area."

It was further confirmed by the letters that the same would con- B
tinue as an agreement between the two Govermnents and would be an
integral part of the earlier agreement of 1974 concerning the demarca-
tion of land boundary between India and Bangladesh and other related
matters.

Construing clauses 2 and 3 of the agreement of 1982, the learned
Single Judge in the Calcutta High Court in the judgment under appeal c
had held that there was no question of lease or exclusive possession of
Bangladesh of the said area. The undisturbed possession and use of the
said area granted to Bangladesh under the said agreement of 1982 had
to be read in the background of the purpose of the agreement, namely,
connecting Dahagram and Angarpota with Panbari Mouza of Bangla- D
desh to enable the Bangladesh Government to exercise sovereignty
over Dahagram and Angarpota. The learned Single Judge had further
held that such undisturbed possession and use did not mean exclusive
possession but merely meant that there would be no interference with
the exercise of rights conferred by the agreement on Bangladesh
Government and its nationals. The learned Single Judge had held that E
no transfer of possession of the area was contemplated under the
agreement.

Construing clause 9 of the agreement, the learned Single Judge
had held that under the said clause where persons were involved in any
criminal offence in the said area, if they were all Indian nationals, the F
J.
matter would be taken up by the Indian law enforcing agency. If the
same involved only Bangladesh nationals the same would be dealt with
by the Bangladesh law enforcing agency only. But where both Bangla-
desh and Indian nationals were involved in any incident, the law en-
forcing agency of each State would take up the matter to the exclusion
of the other. The learned Single Judge had held that the said clause G
conferred certain important rights to B'angladesh and took away some
important rights of the Government of India, its law enforcing
agencies, the courts in India and Indian citizens. At present, the law
enforcing agencies of India and the Indian Courts alone had exclusive
jurisdiction in respect of such matters. The learned Single Judge had
held that if the agreement was implemented the existing Indian law H
40 SUPREME COURT REPORTS l 1990] 3 S.C.R.

and the machinery for enforcing such law would not be available in the
area so far as B_angladesh nationals were concerned. India would have
no jurisdiction over Bangladesh nationals in respect of any offence
committed in the area. The learned Single Judge, however, held that
conferment of this power under the agreement to Bangladesh and
abdication of any such power by India, by itself did not amount to
B transfer of sovereignty in respect of the area. But the learned Judge
noted that merely by virtue of the agreement and without any amend-
ment of existing Indian law it might not be legally possible to take
away existing jurisdiction of the law enforcing agencies of India or the
Indian courts.

The Division Bench of Calcutta High Court correctly noted that
c the learned Single Judge came to the following conclusions:

(a) Implementation of the agreements of 1974 and 1982 did not
involve cession of any Indian territory to Bangladesh. ·-
D (b) No exclusive or legal possession of Tin Bigha was being
transferred to Bangladesh.

(c) There was no question of transfer of sovereignty of India
wholly or partially in respect of the said area.

E (d) Certain privileges only had been conferred on Bangladesh
and its nationals under the said agreements which otherwise they
would not have.

(e) As Dahagram and Angarpota would remain as parts of
Bangladesh territory, the agreements were neces~ary to enable
F Bangladesh to exercise its sovereignty in full over the said enclaves. '
(f) In spite of the said agreements India would retain its
sovereignty, ownership and control over Tin Bigha.

It was contended before the Division Bench that the agreement
G between India and Bangladesh of 1974 provided specifically that the
same would be suitably ratified. But it had not been ratified. It was
urged that in the absence of any ratification of the agreement of 1974,
India and Bangladesh could not enter into the said subsequent agree- >-
men! in 1982 on the basis of the agreement of 1974. It was submitted
that the said agreement of 1982 could not stand by itself. Learned
H Advocate had submitted before the Division Bench that under clause
U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 41

14 of the agreement of 1974, it was clearly recorded that India would
lease in perpetuity to Bangladesh the said area of Teen Bigha to con- A
nect Dahagram with the Panbari mouza in the main land of Bangla-
desh. The subsequent agreement of 1982 was entered into between
the two countries for implementing the earlier agreement of 1974 and
had to be construed in the background of the latter. Several other
contentions were urged on behalf of the Union of India and the appel- B
lants before the Division Bench. All the contentions were noted by Mr.
Justice D .K. Sen, as the learned Chief Justice then was, who delivered
the main judgment of the Division Bench in the judgment under
appeal. He also noted the decision of this Court in Associated Hotels of
India Ltd. v. R.N. Kapoor, [1960] 1 SCR 368 on the question of lease
and licence- and also the decision of this Court ·in the Presidential
Reference noted above. The decision of this Court in Maganbhai c
Ishwarbhai Patel v. Union of India & Anr., [1969] 3 SCR 254, which
dealt with the cession of Rann of Kutch to Pakistan, was also noted.
This Court had reiterated there that a treaty really concerned the
political rather than the judicial wing of the State. When a treaty or an
award after arbitration comes into existence, it had to be implemented D
and this can only be if all the three branches of Government to wit the
Legislature, the Executive and the Judiciary, or any of them, possess
the power to implement it.

On the question of 'sovereignty', reliance was placed before us
on 'A Concise Law Dictionary' by P.G. Osborn, 5th Edition, p. 297, E
· where 'sovereignty' has been defined as "the supreme authority" in an
independent political society. It is, essential, indivisible and illimit-
able. However, it is now considered and accepted as both divisible and
!imitable, and we must recognise that it should be so. Sovereignty is
limited externally by the possibility of a general resistance. Internal
sovereignty is paramount power over all action within, and is limited F
). by the nature of the power itself.

At p. 94, J.G. Starke in 'Introduction to International Law', 9th
Edition, explains the position as under:

"Normally a State is deemed to possess independence and G
'sovereignty' over its subjects and its affairs, and within its
territorial limits 'Sovereignty' has a much more restricted
meaning today than in the eighteenth and nineteenth
centuries when, with the emergence of powerful highly
nationalised States, few limits on State autonomy were ack-
nowledged. At the present time there is hardly a State H
42 SUPREME COURT REPORTS [1990] 3 S.C.R.

which, in the interests of the international community, has
A not accepted restrictions on its liberty of action. Thus most
States are members of the United Nations and the Interna-
tional Labour Organisation 'ILO', in relation to which they
have undertaken obligations limiting their unfettered dis-
cretion in matters of international policy. Therefore, it is
B probably more accurate today to say that the sovereignty of
a State means the residuum of power which it possesses
within the confines laid down by international law."

In a practical sense, it has been noted, sovereignty would be
largely a matter of degree. Reference, in this connection, has been
made to the following authorities on the following aspects of inter-
c national law:-

International Law, D.P.O. 'Connell, 2nd Edn. Vol. I page 552.

Customar)I Restraints on Sovereignty:
D
"A survey of actual servitudes is instructive when
approaching the more general question or customary
restraints on sovereignty in the interests of neighbourly
relations, because they disclose the categories of situations
susceptible of customary law treatment. With the exception
E of fisheries, those treaties instanced as servitudes all give
effect to the notion of freedom of access or of transit. The
subject-matter may be broken down into a consideration of
the general principles of access and transit, and then 7
specific investigations of rivers and canals as media of -.
transit."
F
Freedom of access and transit:

"The classical writers from Vittoria on were unanimous in
their view that a State must permit others to trade with it,
and hence must grant them access and right of transit, and
G the opinion was maintained in spite of a mercantilis theory
of trade."

Access to enclaves:

"There is cogency in the argument that a State has a right
H of access across alien territory to its enclaves area and in
U.0.1. v. SUKUMAR SENGUPTA {MUKHARJI, J.] 43

fact enclaves have only survived because of the graot of
A
necessary facilities, so that all enclaves are servitudes.
Whether, in the absence of actual agreement there is a
right of access was undecided by the International Court of
Justice in the rights of passage case because it found that
existing practice in the instant situation was the appropriate
guide and it was unnecessary to resort to general interna- B
tional Jaw, The lesson on the face is that free access means
in fact limited access, but the fact remains that even though
the territorial State has a discretion to regulate and
authorise the exercise of rights these none the less remain
rights."

In the actual case the Court allowed a latitude of discretion
c
to India which narrowed down, in some respects almost to
vanishing point, the admitted right of access. In particular
there was a dissent on the question whether armed forces
were entitled to access.
D
"The Development of International law, by International Court-
Sir Herson Lauterpacht, 1958".

"A number of cases decided by the Court are instructive
not so much as pointing to a restrictive interpretation of
rights ?f sovereignty as, in affirming its' divisibility and E
capacity for modification, in denying to it and rigid quality
of absoluteness.

The result in accordance with what is the essence of the
system of mandates and trusteeship is to stress the func-
tional divisibility of sovereignty and, then, the absence F
from it, notwithstanding doctrinal logic, of any rigid
el!!ment of absoluteness.

However, it is believed that the recognition by the Court of
such situations, involving as they do the separation of some
functions and attributes of sovereignty from others, is G
bound, apart from affirming the relative nature of sover-
eignty; to be beneficial for the development of inter-
national law and the peaceful adjustment of territorial and
political problems. Unless autonomy and delegated exer-
cise of sovereignty are made distinguishable both in fact
and in law from outright cession of territory, it may be H
44 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

difficult to secure for them the place to which they are
A
entitled as an international institution rendering possible
territorial arrangements and adjustments short of cession.
The convenience of a rigid dichotomy of full sovereignty
and the entire absence thereof is probably deceptive."

B In the light of authorities on International Law as noted above,
and the factual findings noted above, we are of the opinion that the
Division Bench came to the correct conclusion that the decision to
allow Bangladesh to retain Dahagram and Angarpota under the agree-
ments of 1974 and 1982 would not amount to cession of any part of the
territory of India in favour of a foreign State. The Division Berlch after
examining the record came to the conclusion that both defacto and
c dejure Dahagram and Angarpota remained part of the East Pakistan
and subsequently Bangladesh. If that is the position, then undiputedly
there was no question of cession of any part or any territory by the
agreements of 1974 and 1982. This is a finding which is factually con-
cluded. We are of the opinion. that it is factually correct, and not
D disputed before us by the respondents.

The Division Bench next considered whether by reason of the
agreement of 1958 between India and Pakistan, which was sanctioned
by the Ninth amendment to the Constitution, there was automatic
exchange of the Pakistan enclaves in the eastern part of India with
E the Indian enclaves in eastern Pakistan. The Division Bench did not ,
accept this position. The Division Bench noted that so far as the
western border of India and Pakistan is concerned, the agreement of
1958 between India and Pakistan has been given effect to. By an
official notification, 17th January, 1961 was appointed as the day for
the transfer of the territories of India by way of exchange with the
r
F territories of Pakistan in the western region. No further appointed day
was notified so far as the eastern border of India was concerned and
the provisions of the 1;58 agreement so far as the eastern region of '
India was concerned remained unimplemented. The Division Bench
held that there was no automatic transfer of Dahagram and Angarpota
to India under the 1958 agreement between India and Pakistan in the
G absence of a notified appointed day. We are of the opinion that the
Division Bench was pre-eminently right in the conclusion it arrived. It
is not also disputed before us that legally that was the position. Ninth
amendment had not become part of the Constitution as no appointed ,...._
date was notified. In this connection, reliance may be placed on the
decision of this Court in A.K. Roy, etc. v. Union of India & Anr.,
H [ 1982] 2 SCR 272. Consequently, Dahagram and Angarpota remained
U.O.I. v. SUKUMAR SENGUPTA IMUKHARJI, J.] 45

&no still remain part of the territory of East Pakistan and subsequently
A
Bangladesh. This position has been recognised by both the Govern-
ments of India and Bangladesh in the two subsequent agreements of
1974 and 1982. In the aforesaid view of the matter, the decision to
allow Bangladesh to retain Dahagram and Angarpota does not amount
to cession of Indian territory in favour of Bangladesh. This is well
settled. The Division Bench has so held in the judgment under appeal. B
. No argument was advanced before us challenging the aforesaid
finding. Having regard to the facts found and the position of law, we
are of the opinion that the Higb Court was rigbt in this aspect of the
conclusion.

The next question that falls for consideration is whether the
agreement of 1958 between India and Pakistan which was sanctioned c
by the Ninth Amendment to the Constitution in 1960 became a final
treaty binding on India and Bangladesh. It was also accepted that
neither India nor Bangladesh has formally terminated the said treaty
of 1958 and as such it was contended before the Division Bench that in
so far as the provisions of the said agreement of 1958 concern Berubari D
Union No. 12 and the Cooch Behar enclaves including Dahagram and
Angarpota were concerned, they could not be given a go-by in the
manner purported to have been done. It appears, as the Division
Bench found, that the said agreement between India and Pakistan in
1958 was never implemented so far as the border between West Bengal
and East Bengal was concerned. The Division Bench held that it was E
always open to States to enter into new treaties or to vary or modify
l!Xisting treaties by fresh agreements. To the extent the 1958 agree-
ment between India and Pakistan remained unimplemented, the Divi-
sion Bench held that it was open to India and Bangladesh to enter
into 'a new treaty and to modify such unimplemented provisions of the
earlier treaty and this had been done by the subsequent agreements F
entered into between India and Bangladesh in 1974 and 1982. Under
, '- · the said two later agreements, the provision of the earlier agreement
of 1958 stood partially modified and superseded. This view was
supported by the statement of law by D.P.O'Connell in 'International
Law', 2nd Edition, Vol. I, pages 272, 278 and 279. The Division Bench
has so held. We are in agreement with this view. No contrary view was G
canvassed before us.

--'· As mentioned hereinbefore, it is clear from the said agreements
of 1974 and 1982 that the transfer of territories which were sanctioned
under the Ninth Amendment of the Constitution will not be given
effect to. Berubari No. 12 which was intended to be given to East H
46 SUPREME COURT REPORTS [1990] 3 S.C.R.

Pakistan would not be given to Bangladesh and Dahagram and
A
Angarpota which were intended to be transferred to India would be
retained by Bangladesh. The question, is, whether to the extent as
aforesaid, a further amendment to the Constitution was necessary.
The Division Bench was of the view that the subsequent agreements of
1974 and 1982 providing for exchange of territories would have to be
B noted in the relevant Schedules to the Constitution before any
appointed day could be notified in respect of the territories tc be
transferred to Bangladesh. This was necessary in order to retain
Berubari in India, according to the Division Bench.

Learned Attorney General has contended before us that this was
not necessary and it was not conceded before the Division Bench that
c such amendment of the Constitution was called for. We are of the
opinion that learned Attorney General is right in his submission. After
having perused the entire judgment it appears to us that what the
learned Attorney General had conceded before the Division Bench ·
was that if the agreements of 1974 and 1982 amounted to cession of
D territory that would have required constitutional sanction or amend-
ment. In view of the position in International law for the reasons
mentioned hereinbefore, the Divi.sion Bench has held that there was
no cession of territory. If that is the position and we are of the opinion
that it is so, and further in view of the fact that no appointed day was
notified and the Ninth Amendment to the Constitution has remained a
E dead letter and had not become effective, no constitutional amend-
ment was required for the arrangements entered into either by the ·-
agreements of 1974 and 1982. The Division Bench, in our opinion, was
in error in expressing a contrary view.

A question had been raised before the Division Bench that as the
F agreement betwen India and Bangladesh of 1974 specifically and
categorically required ratification, whether India and Bangladesh
could have entered into the subsequent agreement of 1982 recording -'
their understanding on the earlier agreements regarding Teen Bigha.
This point, according to the Division Bench was of little substance.
The later agreement of 1982 between India and Bangladesh by itself
G includes therein certain clarifications. The agreement between two
countries might be ratified not only by a subsequent formal agreement
but by actual implementation or by conduct and read properly, in our
opinion, these two subsequent agreements did ratify the previous
agreement. The submission that the agreement between india and
Bangladesh of 1974 was a personal treaty between late Smt. Indira
H Gandhi and Late Sheikh Mujiber Rahaman and by reason of their
U.O.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.) 47

deaths, the said treaty came to an end, was of no substance was
A
rejected by the Division Bench and was not pressed before us. The
agreement of 1974 was a treaty between two sovereign countries, India
and Bangladesh and r~al treaty as understood in International law.

The expression 'lease in perpetuity' used in the two agreements
of 1974 and 1982 occurringin the recital is binding on the parties to the B
said document. Odgers Construction of Deeds and Statutes had been
cited as an authority in support of this contention. But.it has to be
--f" borne in mind that the expression 'lease in perpetuity' has to be under-
stood in the context of and with reference to the objects of the agree-
ments concerned. The meaning attributed to the expression 'lease in

-- perpetuity' in private law can not be properly imported for the purpose
of construing a document recording an agreement between two
sovereign States acting as high contracting parties, where neither of
c
them is bound by the private law of the other. For the same reason, it
~/is not necessary to decide whether the said agreements of 1974 and
1982 amounted to or resulted in the grant of a licence by India in
favour of Bangladesh under Indian law or within the meaning of the D
Indian Easement Act. This question has to be examined on the terms
and conditions recorded in the said agreements and in the context of
International Law to determine what rights are being conferred on the
respective States thereunder. In that view of the matter, the nomencla-
ture used and the expressions recorded would not by themselves be of
_/ much significance. This view is supported by the observations of Ian E
Brownlie in 'Principles of Public International Law', 2nd Edition.

__.,,- The use of the expression 'lease in perpetuity' in the recital of the
· ""-I - agreement of 1982 and whether such recital operates as an estoppel
against the parties is not of particular significance. In any event, the
Division Bench held that the recital in a deed could not operate as an F
)_ estoppel against the specific terms and conditions thereof. On a con-
. · ·· struction of the agreement, the Division Bench came to the conclusion
that the agreements of 1974 and 1982 together in their entirety keeping
in view the background must be judged. An important and significant
fact in the background of which the said agreements had been entered
into between India and Bangladesh was that the two areas Dahagram G
and Angarpota, now intended to be retained by Bangladesh, were
enclaves wholly encircled and enclosed by the territories of India. If
___.-'. Bangladesh had to reiain and exercise its sovereignty over these areas,
her access to the said areas was imperative and necessary. It is with
that object, namely, to allow access to Bangladesh to Dahagram and
Angarpota for the purpose of exercise of her sovereignty over and in H
48 SUPREME COURT REPORTS [1990) 3 S.C.R.

the said areas, the said agreements had been entered into. It must be
A
understood in that light and appreciated in the background of desire to
maintain friendly and neighbourly relationships between two
sovereign States. In the agreement of 1974, it was only recorded that
India would lease in perpetuity to Bangladesh the said area at Teen
Bigha to connect Dahagram and Panbari Mouza of Bangladesh. Terms
B and conditions of the intended lease were not set out in the agreement
of 1974. In the subsequent agreement of 1982, it was clarified by the
two Governments as to what would be the said 'lease in perpetuity'.
The object of the said lease had again been specifically set out in clause
1 of the agreement of 1982. The other clauses of the said agreement
which recorded also the terms and conditions of the transaction have
to be understood in the background and context of the said object. In
c clause 3 of the agreement of 1982, no doubt it was recorded that
Bangladesh shall have undistu~bed possession and use of the area
leased but the said clause also categorically recorded that such posses-
sion and use would be for the purposes stated in clause 1. ---
D In clause 2 of the agreement of 1982, it was specifically recorded
that sovereignty over the leased area would continue to vest in India.
This meant that Bangladesh would not exercise sovereignty over the
said area. This is a specific declaration by the two States and there was
no reason why this particular clause should be ignored or overlooked
and the effects and implications thereof minimised. Clause 2 further
E · indicated that under the said agreement only limited rights were being '
granted to Bangladesh and not all or all absolute rights over the terri-
tory involved, which would result in the surrender of sovereignty over
the area by India. No right to administer the said territory had been
given to Bangladesh. The specific rights which had been given to
Bangladesh under the said agr~ements were, inter alia, the right of free
F and unfettered movement over and across for passage through the
leased area. This right would be available to Bangladesh citizens in-
cluding police, para military, and military personnel who would be
entitled to move to the leased area with supply and equipment includ-
ing arms without passport or travel documents. A further right of
movement of goods over and through the area without payment of
G customs duties or other similar tax or levy has been conferred by the
agreement. Having examined the rights in the agreements, we are of
the opinion that this did not amount to lease or surrender cif
sovereignty as understood in the international law. In the Panama
Canal's case (See Hudson, Cases. Cases & Other Materials on Interna-
tional Law, 3rd Edition, 1951, pp. 222-3. See also Ian Brownlie's
H Principles of Public International Law, 3rd Edn., p. 116) a lease was
U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.) 49

granted to the United States in perpetuity. The United States was
A
given the occupation and control of the area concerned over and below
the surface for the construction and protection of the canal. Move-
over, the United States was allowed under the lease to exercise over
the canal zone all rights, power and authority which it would possess if
it were the sovereign of the territory. These are not the tenns of the
agreement before us. In the instant case, the major right which had B
been conferred on Bangladesh was the right of free movement over the
area. The right of undisturbed possession and use of the area under the
agreement of 19'82 has to be understood in the context of the right of
free movement. It appears to us that it is not possible to hold that
Bangladesh would have a right to occupy pennanently the area or to
construct buildings and fortification therein or to lay railway lines
through the area. If such rights are sought to be exercised by c
Bangladesh in the area, the same would interfere with rights of free
movement in the area of Indian citizens and of Indian goods. As the
right to free movement over the area by both the countries are being
retained or granted, therefore, neither country and in particular,
Bangladesh can generally occupy or block any part of the area. The D
Division Bench held that under the said agreements, specific and
limited rights were being granted to bangladesh. Such rights were not
exclusive and the aggregation thereof would not amount to a lease,
as is commonly understood in favour of Bangladesh. We are of the
opimon that the Division Bench was right in the view it took.
E
Afortiorari, the said transaction did not amount to cession of the
said area of Teen Bigha in favour of Bangladesh. Cess.ion as under-
stood in international law would result in an actual and physical trans-
fer of the said area to Bangladesh following which Bangladesh would
have the exclusive right to treat the said transferred territory as part of
F
its own territory and exercise full control, dominion and right over the
same. This is not the position or the situation which is contemplated
under the agreements. The rights intended to be conferred on Bangla-
desh under the said agreements, would amount to what is known as
"servitude" in International law. Certain restrictions had been
imposed on India over its absolute sovereignty in the area to serve
purpose in favour of and in the interest of Bangladesh. These are, G
however, sell-imposed restraints. On a proper construction of the
agreements of 1974 and 1982 and the individual clauses, it cannot be
said that as a result of the said agreements, India ha.d surrendered its
sovereignty over the said area of Teen Bigha in favour of Bangladesh
or that Bangladesh has become the soverei!lll over the said territory to
H
50 SUPREME COURT REPORTS [1990] 3 S.C.R.

A the exclusion of India. Sovereignty is a quality of right. It is a bundle of
rights. It depends on the facts and the circumstances of each case. ~
Apart from anything else, the specific clause in the agreement of 1982
that sovereignty over the area shall continue to vest in India stands in
the way of a contrary construction. This clause distinguishes the con-
B cessions in the instant case from the grant in favour of the United
States in Panama case (supra), where the United States received all
right, powers and authority within the zone of lease which it could
possess and exercise if it were the sovereign of the territory leased.
The statements on the relevant aspect of International law in the V
authoritative text books noted earlier indicated that in the present
and modem context sovereignty has and must have a more restrictive
c meaning that it had in the earlier centuries when on the emergence of
individual national States, no limits on the power ot states were
acknowledged. See 'Introduction to International Law' by Strake
(supra). Any State in the modem times has to acknowledge and accept ~

customary restraints on its _sovereignty inasmuch as no State can
D exist independently·and without reference to other States. Under the
general international law the concept of inter-dependence of States
has come to be accepted. Even without the said agreements of 1974
and 1982, so long as Dahagram and Angarpota remain part of Bangla-
desh, the latter under the general International law and customs
would have a right to access to the said enclave through the territory of
E India. It is this international practice and customs which has been
recognised in the said agreements except that the military, para- '
military and police of Bangladesh with arms, ammunitions and equip-
ments have also been given a right of passage through the area. The
concessions given to Bangladesh over the said area might amount to
servitudes suffered by India in its territory, as known in international
law. See the observations of Oppenheim, 8th Edition, p. 537-538 and
F
also Max Sorensen in Manual of Public International Law, 1968 Edi-
tion, which states that the acceptance of servitudes does not represent ---'-
any negation of sovereignty. The term "servitude" means nothing
more than accepted restrictions and grant of servitude does not
amount to cession of territory. The Division Bench was unable to
G accept the contention that the use of the expression 'residual jurisdic-
tion' in clause 9 of the agreement of 1982 indicates that India only
retained residual sovereignty over the area and the defacto and real
sovereignty in the said area has been surrendered to Bangladesh. The
said expression in clause 9 refers to nothing more than the jurisdiction
to be exercised by India in respect of incident occurring in the said
H territory involving law and order, which may or may not amount to_
U.0.I. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 51

commission of a criminal offence. The fact that certain old disputes
A
between India and Pakistan regarding the said 12 thanas in the Sylhet
District of Assam have not been settled with Bangladesh by the said ·
agreements of 1974 and 1982 and that might remain pending is of no
relevance to the legality and validity of the said agreements. The Divi-
sion Bench expressed the view that perhaps the letters of the two
countries will take remedial measures. On clause 9; it was submitted B
· that the Bangladesh national committing an offence in the said area of
Teen Bigha involving another Bangladesh national would be dealt with
by the law enforcing agency of Bangladesh in accordance with the laws
of Bangladesh. If the said territory remains a part of the territory of
India, then in such cases, the law enforcing agency and the courts in
India would not exercise their normal jurisdiction in respect of an
offence committed by a Bangladesh national in the territory of India.
c
This may necessitate suitable changes in the laws of India.

The Division Bench for the reasons indicated above, made the
following order:
D
"The respondents before implementation of the said agree-
ments of 1974 and 1982 are directed:

(a) To amend the Constitution of India suitably so that the
Berubari Union is not transferred to Bangladesh along with E
the other territories as contemplated by the 9th Amend-
ment of the Constitution. The agreements of 1974 and 1982
are directed to be suitably noted or recorded in the relevant
Schedules to the Constitution authorising the transfer of
the territories to Bangkdesh and not Pakistan.
F
(b) To take steps for acquisition and acquire the land
owned by Indian Citizens in the said area in accordance
with law;

(c) To consider and effect suitable amendment of Indian
Law and in particular, the Indian Penal Code and the Cri- G
minal Procedure Code as presently applicable in the said
area of Tin Bigha.

The appeals are disposed of as above. There will be no
order as to costs."·
.H
52 SUPREME COURT REPORTS [1990] 3 S.C.R.

A We are of the opinion that so far as clause (a) of the ordering
portion of the judgment is concerned, this .was not warranted. There
was no need to amend the Constitution of India so that the Berubari
Union No. 12 is not transferred to Bangladesh along with other
territories as contemplated by the Ninth Amendment to the Constitu-
tion. Ninth Amendment to the Constitution has not come into effect.
B
Therefore, the agreements of 1974 and 1982 did not require to be
suitably notified or included in that official gazette. The Division
Bench has held that there was no cession of territory. There was no
abandonment of sovereignty and, therefore, no constitutional amend-
ment was necessary in view of the facts mentioned hereinbefore.

c Justice Monjula Bose delivered a separate but concurring judg-
ment. She held that sovereignty over the area, in fact, continued to be
vested in India. She further held that there was no intention on the
part of India to give Bangladesh either occupation or possession of
Indian territory as such, but merely "undisturbed possession" and
D "use" for the express purpose of "connecting Dahagram with Panbari
Mouza of Bangladesh to enable Bangladesh to exercise sovereignty
over Dahagram and Angarpota and for no other purpose. We reiterate
the views of the said learned Judge that the complexities of modern
developed societies need peaceful. co-existence, if the world is to
survive. Amicable and peaceful settlement of boundary disputes are in
E the interests of the international community. The older and absolute
ideas of sovereignty and independence has thus necessarily to be ''
·modified in the dawn of the 21st century. A perpetual right of passage
and other incidental rights given to Bangladesh for the limited purpose
for exercising the sovereignty over her own two enclaves within the
territory of India and/or if imposed restrictions on itself by India does
F not tantamount to transfer of interest in land. No constitutional
amendment was necessary in view of the fact that 9th amendment had
not come into effect as there was no appointed day fixed by the Parlia-
ment and the principles enunciated by the decision of this Court in
A.K. Roy's case (supra). Learned Attorney General submitted that
the Division Bench was in error in directing changes and constitutional
G amendment as it has purported to do. In A. K. Roy's case (supra), this
Court indicated the contention at p. 272 of the report that the Govern-
ment would be compelled to exercise its power to issue notification as
to at what date the law has to come into effect. There under section
1(2) of the 44th Amendment Act, it shall come into force on such date
as the Central Government may, by notification in the Official Gazet-
H te appoint and different dates may be appointed for different provi-
U.0.1. v. SUKUMAR SENGUPTA [MUKHARJI, J.] 53

sions of the Act and thus leaving to the Government to fix date in this
A
case cannot be interfered and since the appointed day had not been
fixed, the Ninth Amendment has not come into force.

In that view of the matter, the directions by the Court to amena
the law cannot and should not be given. See in this connection the
observations of this Court in State of Himachal .Pradesh & Anr. v.
B
Urned Ram Sharma & Ors., [1986] 2 SCC 68. In State of Himachal
Pradesh v. A parent of a Student of Medical College, Simla & Ors.,
[ 1985] 3 SCR 676, this Court at p. 684 of the report reiterated that the
Court cannot group the function assigned to the executive and the
legislature under the Constitution and cannot even indirectly require
the executive to introduce a particular legislation or the legislature to c
pass it or assume to itself a supervisory role over the law making
activities of the executive and the legislature. The Court having held
that 9th Amendment to the Constitution has not come into effect and
there being no cession of any part or territory or abondonement of
sovereignty, there was no cause to direct the legislature to amend or
pass suitable laws. The Division Bench transgressed its limits to that D
extent. See in this connection the observations of this Court in State of
Himachal Pradesh v. Urned Ram Sharma, (supra) at pp. 78 and 79 of
the report. ·

/ We are of the opinion that the directions of the Division Bench E
of the Calcutta High Court to that extent may be deleted in clause (a)
of the ordering portion. So far as to take steps for acquisition and to
acquire the land owned by Indian citizens in the said area in accord-
ance with laws is concerned, it was wholly unnecessary because there
was no land owned by the Indian citizens which was required to be
acquired. So far as clause (c) of the ordering portion is concerned, the F
Government has already taken steps and has agreed to take steps to
'· -amend the law. But the implementation of the agreeements is not
dependent on such steps being taken.

While we modify the judgment and order of the Division Bench,
we must observe that this was really a fight over non-issue. The Divi- G ·
sion Bench categorically held that there was.no cession of territory and
no lease in perpetuity. If that is so, without the change in the law or
.J change in the Constitution, the agreement should have been imple-
mented fully and we hope that will be done for the restoration of the
friendly relations between India and Bangladesh.
H
54 SUPREME COURT REPORTS [1990] 3 S.C.R.

A Before we conclude, we must observe that Mr. Khanduja,
counsel for respondent submitted that if the will of the people expres-
sed that such agreement should be implemented then his client has no
objection to such implementation. That is the good attitude to aciopt.

The appeal is disposed of in the aforesaid light and deleting the
B aforesaid directions of the Division Bench and the appeal is allowed to
the extent. There will be no orders as to costs.

R.S.S. Appeals disposed of.