Case Note & Summary
The dispute arose from the Indo-Pakistan Agreement of 1958, under which part of Berubari Union No. 12, a group of villages in Jalpaiguri district, West Bengal, was to be ceded to Pakistan. Following an advisory opinion of the Supreme Court in In re Berubari Union, Parliament enacted the Constitution (Ninth Amendment) Act, 1960 to implement the cession. Some inhabitants of the affected area, the respondents, filed a writ petition under Article 226 of the Constitution before the Calcutta High Court challenging the proposed physical demarcation of the territory to be transferred. They contended that the cession would deprive them of their properties without compensation and therefore amounted to compulsory acquisition under Article 31(2) of the Constitution. A learned single judge of the High Court accepted this contention, holding that cession involved transfer of ownership and private property rights to Pakistan through the Union of India, and though not falling under clause (2A) of Article 31, constituted compulsory acquisition requiring compensation. The single judge granted a certificate under Article 132(1) for direct appeal to the Supreme Court.
The Supreme Court, speaking through Grover J., considered whether cession of territory by India to Pakistan as a result of a treaty amounted to compulsory acquisition of property under Article 31(2). The Court noted that the Constitution (Fourth Amendment) Act, 1955 made it clear that mere deprivation of property, unless it was acquisition or requisitioning within the meaning of clause (2A), would not attract clause (2) and no obligation to pay compensation would arise. It was essential under clause (2) that there be a transfer of ownership or right to possession of property to the State or to a corporation owned or controlled by the State. Cession, the Court explained, indisputably involved transference of sovereignty from one sovereign State to another, but there was no transference of ownership or right to possession in the properties of the inhabitants of the ceded territory to the ceding State itself. The effect of the Constitution (Ninth Amendment) Act, 1960 could by no stretch of reasoning be regarded as transfer of ownership or right to possession of any property of the respondents to the 'State' within the meaning of Article 12 of the Constitution. Consequently, no question of acquisition within Article 31(2) was involved and no compensation was payable. The Court also deprecated the practice of a single judge granting a certificate under Article 132(1), observing that although technically correct, it was improper and should be resorted to only in very exceptional cases. The appeal was accordingly allowed and the High Court's order was set aside.
Headnote
A) Constitutional Law - Compulsory Acquisition - Cession of Territory - Constitution of India, 1950, Article 31(2) - Ceding part of Indian territory to Pakistan under the Constitution (Ninth Amendment) Act, 1960 only transferred sovereignty, not ownership or right to possession of private property to the State - The Supreme Court held that no transfer of ownership or right to possession to the Union of India within the meaning of Article 31(2) occurred and therefore no compensation was payable - Held that no question of acquisition within Article 31(2) was involved (Paras Not mentioned).
B) Constitutional Law - Property Rights - Deprivation versus Acquisition - Constitution of India, 1950, Article 31(2) and Article 31(2A) as amended by the Constitution (Fourth Amendment) Act, 1955 - Mere deprivation of property without acquisition or requisitioning did not attract Article 31(2) and no obligation to pay compensation arose - The Court reasoned that clause (2A) made it clear that transfer of ownership or right to possession to the State or a State-controlled corporation was essential; cession to a foreign State did not satisfy this requirement - Held that the respondents were not entitled to compensation under Article 31(2) (Paras Not mentioned).
C) Constitutional Law - Appeals - Certificate by Single Judge under Article 132(1) - Constitution of India, 1950, Article 132(1) - A single judge of a High Court granting a certificate for direct appeal to the Supreme Court, though technically correct, was an improper practice and should be given only in exceptional cases - The Supreme Court deprecated the practice and noted that it was deprived of the benefit of a larger Bench judgment on substantial questions - Held that the certificate practice should be restricted to exceptional cases (Paras Not mentioned).
Issue of Consideration
Whether cession of Indian territory to Pakistan under the Constitution (Ninth Amendment) Act, 1960 amounts to compulsory acquisition of property within the meaning of Article 31(2) of the Constitution, and whether compensation is payable to inhabitants; also propriety of single judge granting certificate under Article 132(1).
Final Decision
The Supreme Court held that no question of acquisition within the meaning of Article 31(2) was involved in cession of territory to Pakistan. Cession transferred sovereignty only, not ownership or right to possession of private property to the State; hence no compensation was payable. The Court deprecated the practice of a single judge granting certificate under Article 132(1) and accordingly allowed the appeal, setting aside the judgment of the Calcutta High Court.
Law Points
- Cession is transfer of sovereignty not ownership
- Article 31(2) requires transfer of ownership or right to possession to State
- mere deprivation of property not acquisition
- single judge certificate under Article 132(1) is improper practice
Case Details
1971 LawText (SC) (03) 24
Civil Appeal No. 974 of 1968
A.N. Grover, S.M. Sikri, J.M. Shelat, C.A. Vaidyialingam, A.N. Ray
1971 AIR 1594, 1971 SCR 244
L.M. Singhvi, S.P. Nayar, A.K. Dutta, K. Rajendra Chowdhary, Santosh Chatterjee, G.S. Chatterjee
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution challenging proposed demarcation of Berubari Union No. 12 for cession to Pakistan, claiming violation of right to property under Article 31(2).
Remedy Sought
Respondents sought a declaration that the transfer involved compulsory acquisition without compensation; they sought to prevent announcement of the appointed day and construction of pillars to demarcate the territory unless legislation providing compensation was enacted.
Filing Reason
Proposed partition and cession of Berubari Union would deprive inhabitants of their property without payment of compensation.
Previous Decisions
President's reference under Article 143(1) resulted in advisory opinion In re Berubari Union; Parliament enacted Constitution (Ninth Amendment) Act, 1960; earlier writ petition challenging partition dismissed by Supreme Court in Ram Kishore Sen v. Union of India (1966); single judge of Calcutta High Court held cession involved acquisition under Article 31(2) and granted certificate under Article 132(1).
Issues
Whether cession of Indian territory to Pakistan under the Constitution (Ninth Amendment) Act, 1960 amounts to compulsory acquisition of property within the meaning of Article 31(2) of the Constitution.
Whether compensation is payable to inhabitants of ceded territory under Article 31(2) for deprivation of property.
Whether a single judge of a High Court can properly grant a certificate under Article 132(1) for direct appeal to the Supreme Court.
Submissions/Arguments
Appellant (Union of India) argued that cession involved transfer of sovereignty, not ownership or right to possession of private property, and therefore did not attract Article 31(2). No transfer of ownership to the State occurred; property rights of inhabitants were not acquired by the Union of India.
Respondents argued that cession would result in Pakistan becoming absolute owner of the territory and private rights would be extinguished, effectively amounting to compulsory acquisition by the Union of India, requiring compensation under Article 31(2).
Respondents also raised a preliminary objection that the direct appeal to the Supreme Court on a certificate granted by a single judge was improper because an intra-court appeal lay to a division bench of the High Court.
Ratio Decidendi
Cession of territory by one State to another under a treaty transfers sovereignty, not ownership or right to possession of private property of inhabitants to the ceding State. Article 31(2) of the Constitution requires transfer of ownership or right to possession of property to the State or a State-controlled corporation for compulsory acquisition; mere deprivation without such transfer, as under Article 31(2A) after the Fourth Amendment, does not attract compensation. Therefore, cession of Indian territory to Pakistan under the Constitution (Ninth Amendment) Act, 1960 did not amount to acquisition and no compensation was payable. A single judge of a High Court should not ordinarily grant certificate under Article 132(1) for direct appeal to the Supreme Court as it short-circuits the right of intra-court appeal and should be limited to very exceptional cases.
Judgment Excerpts
No question of acquisition within the meaning of Article 31(2) is involved in the present case.
Cession indisputably involves transference of sovereignty from one sovereign State to another. But, there is no transference of ownership or right to possession in the properties of the inhabitants of the territory ceded to the ceding State itself.
The practice of a single Judge deciding the case and giving a certificate under Art. 132(1) for appeal to this Court, although technically correct, was an improper practice.
Procedural History
On September 10, 1958, India and Pakistan entered into the Indo-Pakistan Agreement, including cession of part of Berubari Union No. 12 to Pakistan. A doubt arose whether implementation required legislative action under Article 3 or amendment under Article 368; the President made a reference under Article 143(1). The Supreme Court delivered an advisory opinion on March 14, 1960 in In re Berubari Union, opining that constitutional amendment under Article 368 was necessary. Parliament enacted the Constitution (Ninth Amendment) Act, 1960 on December 28, 1960 to implement the cession. Some inhabitants filed a writ petition under Article 226 challenging the proposed partition; that petition was dismissed by the Supreme Court in Ram Kishore Sen v. Union of India on August 11, 1965. On June 11, 1965, the present respondents filed another writ petition in the Calcutta High Court challenging the proposed demarcation primarily on the ground of deprivation of property without compensation. A single judge (D.D. Basu J.) initially directed issue of rule nisi limited to ground 3, then after hearing arguments delivered an elaborate judgment holding that cession involved compulsory acquisition under Article 31(2). The single judge granted a certificate under Article 132(1) for direct appeal to the Supreme Court. The Union of India filed the present civil appeal.
Acts & Sections
- Constitution of India, 1950: Article 12, Article 31, Article 31(2), Article 31(2A), Article 132(1), Article 143(1), Article 226, Article 3, Article 368
- Constitution (Ninth Amendment) Act, 1960: Section 2(A)
- Constitution (Fourth Amendment) Act, 1955:
