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S.R. Bhansali Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 523 of 1972
Judge
Reported inAIR1973Raj49; 1972()WLN495
ActsConstitution of India - Articles 1(3), 2 and 226; Evidence Act, 1872 - Sections 57(10)
AppellantS.R. Bhansali
RespondentUnion of India (Uoi) and ors.
Advocates: G.M. Lodha, Adv.
DispositionAppeal dismissed
Cases ReferredMaganbhai Ishwarbhai Patel v. Union of India
Excerpt:
.....the contention in appeal. - - he complained by means of a petition under article 226 of the constitution of india that his fundamental rights under article 19(1)(d), (e) and (f) were violated. both the military interest of the occupant in the security of its armies and in the continuing success of its belligerent operations, and the interest of the inhabitants themselves in resuming their ordinary pursuits and mode of living disrupted by the preceding combat, join in requiring the filling of this vacuum by the re-establishment of order and the restoration, or reconstitution of the mechanisms of government it is thus generally for the securing of this confluence of interests that international law accords the occupant competence for the governance of occupied territory. the hague..........a citizen of india, wanted to enter gadra city -- which is included in the territory of sind which india conquered in india-pakistan war of december 1971 -- but he was prevented by the military authorities. he complained by means of a petition under article 226 of the constitution of india that his fundamental rights under article 19(1)(d), (e) and (f) were violated. the territory which india conquered became part of india under the constitution urged the appellant and he had a fundamental right to freely move therein. this territory could not be ceded to pakistan except by an amendment of the constitution and the agreement reached between india and pakistan on 2/3rd july, 1972 -- popularly called the simla agreement -- whereby it was proposed to return the territory aforesaid was ultra.....
Judgment:

Beri, J.

1. The appellant, who is a citizen of India, wanted to enter Gadra City -- which is included in the territory of Sind which India conquered in India-Pakistan War of December 1971 -- but he was prevented by the Military authorities. He complained by means of a petition under Article 226 of the Constitution of India that his fundamental rights under Article 19(1)(d), (e) and (f) were violated. The territory which India conquered became part of India under the Constitution urged the appellant and he had a fundamental right to freely move therein. This territory could not be ceded to Pakistan except by an amendment of the Constitution and the agreement reached between India and Pakistan on 2/3rd July, 1972 -- popularly called the Simla Agreement -- whereby it was proposed to return the territory aforesaid was ultra vires of the Constitution because the Union Cabinet or the President of the Republic of India had no power to ratify it. The learned Single Judge dismissed the petition in limine by a detailed order on the grounds that mere physical possession is not acquisition unless there is admittance amounting to annexation by law: that administration of the conquered territory was only evidence of civilized behaviour: that he had no territorial jurisdiction to adjudicate the actions of the Cabinet and the President because no part of the cause of action arose within the jurisdiction of this High Court. The appellant has come up in appeal before us.

2. Having regard to the elaborate arguments addressed to us; the nature of the controversy and the close examination we have bestowed, it will be proper if we briefly mention our reasons for rejecting this appeal.

3. The learned counsel's repeated emphasis was on the opinion expressed by their Lordships of the Supreme Court in In re Berubari's case, AIR 1960 SC 845 (para 34). According to him conquest of a territory amounted to automatic acquisition and that Part of Sind which India conquered in 1971 became its integral part. He referred to us to Kautilya and Manu in support of the proposition. His further submission was that the running of the civil administration in the conquered territory by Indian officers and meeting the expenditure out of country's funds besides the reported unfurling of the national flag by the Commissioner Shri K. D. Ujjwal are acts which unmistakably evidence the intention of annexing of the territory by the Government. In any event the intention could be ascertained by notice to the Government, if any doubt was entertained.

4. Article 1(3)(c) of the Constitution reads: 'such other territory as may be acquired'. The true meaning of the word 'acquired' or 'acquisition' has to be first ascertained. Kautilya was a profound scholar of political science and statecraft and Manu was a great law giver but their concept of conquest would be of little or no assistance in interpreting our Constitution today when the nations of the world are knit under United Nations Organization and concepts of international law have acquired new dimensions. The word 'acquisition' their Lordships of the Supreme Court observed in N. Masthan Sahib v. The Chief Commissioner, Pondicherry, AIR 1963 SC 553 (para 10) has to be understood with reference to Public International Law.

5. The observations stressed by the learned counsel In re Berubari, AIR 1960 SC 845 read:

'The acquisition of foreign territory by India in exercise of its inherent right as a sovereign State automatically makes the said territory a part of the territory of India. After such territory is thus acquired and factually made a Part of the territory of India the process of law may assimilate it either under Article 2 or under Article 3(a) or (b).'

6. In our opinion the above passage does not imply that mere physical possession of territory by force of arms amounts to automatic acquisition. What It means is that once India as a sovereign State in exercise of its inherent right acquires (as distinguished from mere seizure) a foreign territory it automatically becomes a part of the territory of India. The word 'acquisition' has now an ^accepted connotation in Public International Law. Conquest is merely one of the modes of acquisition. L. Oppenheim in his classic of International Law (Peace) observes in para 236 (at page 566, Eighth Edition):---

'236. Conquest is the taking possession of enemy territory through military force in time of war. Conquest alone does not ipso facto make the conquering State the sovereign of the conquered territory, although such territory comes through conquest for the time under the sway of the conqueror. Conquest is only a mode of acquisition if the conqueror, after having firmly established the conquest. formally annexes the territory .....'

During the 17th and 18th century seizure of territory in war formed the base of title. It was with the advent of the French Revolution that a distinction came to be drawn between 'conquest' and 'annexation'. (See D. P. O'Connell's International Law Vol. I, 1965 Edition, page 498). Bellingerent occupation of foreign territory by itself is no longer conquest The concept includes formal annexation.'The effect of the distinction between conquest in fact and annexation is this', says O'Connell at page 499, 'that until the conditions laid down by international law for completion of the act of acquisition are fulfilled the status of the conqueror remains that of a belligerent occupier, and the sovereignty of the conquered is not displaced',

7. We are unable to infer formal annexation by such acts as running of the civil administration at country's cost or reported unfurling of the Indian National Flag. Myres S. McDougal and Florentine P. Feliciano in 'Law and Minimum World Public Order', a Yale University Publication, 1967 Edition, observe at page 744,--

'The assertion of authority by a belligerent to constitute and operate processes and structures of governmental administration in territory captured from its opponent is made almost inevitable by the vacuum created by the expulsion of such opponent, i.e. the legitimate sovereign. Both the military interest of the occupant in the security of its armies and in the continuing success of its belligerent operations, and the interest of the Inhabitants themselves in resuming their ordinary pursuits and mode of living disrupted by the preceding combat, join in requiring the filling of this vacuum by the re-establishment of order and the restoration, or reconstitution of the mechanisms of government It is thus generally for the securing of this confluence of interests that international law accords the occupant competence for the governance of occupied territory. The Hague Regulations, which together with the Geneva Civilians Convention set forth the conventional law of belligerent occupation, make clear the important humanitarian purpose underlying the concession of authority to the occupant'

8. The aforesaid passage clearly lays down the standard of a belligerent occupier's behaviour in today's international law. The learned Single Judge was, therefore, right when he characterise ed it as an action of a civilized country.

9. It is possible in a given case to call for information from the Government whether a particular territory was part of India or not Under Section 57(10) of the Indian Evidence Act we can certainly take judicial notice of the fact whether a particular territory is a part of India or not If there were any public notification or declaration by which the Government declared a particular territory as a Part of the territory of India we would be bound to take notice of it. But the case of a foreign territory seized in course of a combat is different. Article 2 of our Constitution says that Parliament may by law admit into the Union a new State, The procedure contemplated prima facie appears to be that it is by passing of a law by Parliament that admittance to the Union has to be done. In our opinion it will be erroneous to conclude the act of annexation from the mere running of the administration. Formal annexation in a democracy like ours with a detailed written Constitution cannot be any secret transaction necessitating on investigation in this case.

10. O'Connell observes at page 500 In his book 'International Law' Vol. I, 1965 Edition,--

'However annexation cannot be presumed unless there is evidence of intention to extend sovereignty over the conquered territory. It has been held, for example that the islands detached from Japan after the Second World War (Republic Aviation Corporation v. Lowe, Ann. Dig., 1946. Case No. 19) and in the Peace Treaty of 1951 were not acquired by the United States so as to become territories thereof. (U. S. v. Ushi Shiroma, (1954) 1 LRP 82. See also Sobhuza II v. Miller, (192G) AC 518 = (AIR 1926 PC 131); Nyali, Ltd. v. Att-Gen., (1956) 1 QB 1'.

11. The last argument of the learned counsel was that Chhamb area in Jammu and Kashmir is being ceded under the Simla Agreement without authority. This ground was not raised in the writ petition but was sought to be added in the application by way of an amendment application. It does not appear that the amendment was allowed. We find no mention of the argument in the order of the learned Single Judge. We cannot apparently entertain the contention in appeal. For the sake of argument, even if we were to consider it, then it has no force because the petitioner is not directly affected by it. Reference may be made to Maganbhai Ishwarbhai Patel v. Union of India AIR 1969 SC 783 para 22. Ordinarily a writ of mandamus is declined unless the party's fundamental rights are being directly and substantially invaded or are in imminent danger of being so invaded. No such allegation has been made in regard to Chhamb.

12. No other point was urged before us.

13. The order of the learned Single Judge in our opinion is correct and we dismiss this appeal summarily.


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