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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 Writ Petn. No. 1256 of 1972
Judge
Reported inAIR1972Raj296; 1972()WLN503
ActsConstitution of India - Articles 1(3), 2, 3 and 226
AppellantS.R. Bhansali
RespondentUnion of India (Uoi) and ors.
Advocates: G.M. Lodha, Adv.
DispositionPetition dismissed
Cases ReferredN. Masthan Sahib v. Chief Commissioner
Excerpt:
constitution of india - article 1(3)(c)--simla agreement--gadra city occupied by indian forces during india-pakistan war--held, gadra city is not part of india and every indian citizen has no fundamental right to enter or settle in gadra city. (no);it is clear that mere physical control or the occupation of the enemy territory does not automatically make that territory part of the territory of the conqueror state. unless such a law has been enacted by parliament, a territory though acquired through force and for the time being administered by india, cannot automatically be taken as integral part of india.;i cannot accept that the petitioner can claim to have any fundamental right under the provisions of the constitution to enter or settle in gadra city which has not yet become the part of..........agreed to hand over the administration of pondicherry along with other french territories to the indian government. under that agreement the administration was handed over to the central government even before the treaty of cession was actually ratified by the french parliament. the question that arose before the supreme court in n. masthan sahib v. chief commissioner, pondicherry, air 1962 sc 797 was, whether before the treaty of cession was formally ratified by the french parliament the territories which were administered by the indian government could be treated as part of india. their lordships, while dealing with this question, observed as follows:'in cases where the only fact available is the de facto exercise of complete sovereignty by one state in a particular area, the.....
Judgment:

V.P. Tyagi, J.

1. Petitioner S. R. Bhansali, a resident of Rajasthan, has filed this writ petition under Article 226 of the Constitution claiming that as a citizen of India he has a fundamental right to enter into and settle down in Gadra City which formerly was the part of Sind (Pakistan) but after the Pakistan war bf 1971 has become part of India and as such no restraint can be put on him to enter that town. His grievance is that when he tried to enter into Gadra City, the military authorities, who are incharge of the administration of that acquired territory, stopped him at the checkpost located at the outskirts of the said Gadra City. The petitioner has also challenged the competence of the Prime Minister to enter into an agreement with the President of Pakistan for the return o the acquired territory to Pakistan after the alleged Simla agreement was ratified by the Central Government, and it is in this context that the petitioner has prayed that this Court by issuing an appropriate writ may decide: (1) That the Simla agreement is ultra vires the Constitution; (2) that the Union cabinet and the President of India have no power to ratify the Simla agreement; (3) that the territory acquired under the December, 1971 war is part of India and cannot be transferred to Pakistan without an Act of Parliament; and (4) that the Parliament including the President of India, be directed to give a new name to the acquired territory and the Government of India or the Government of Rajas-than or the Commander who is incharge of the acquired territory be directed not to transfer that territory to Pakistan and not to withdraw the Indian forces to the Indian side of the international border.

2. The main argument of Mr. Lodha is that India has been defined under Article 1 of the Constitution and under Clause (3) of this Article India comprises of:

'(a) the territories of the States;

(b) the Union Territories specified in the First Schedule; and

(c) such other territories as may be acquired.'

3. Clause (3) (c) of Article 1 is relied upon by learned counsel for the petitioner to press his claim to enter into Gadra City on the ground that as soon as the Indian forces captured the Pakistan Territory it automatically became part of India by virtue of Clause (3) (c) of Article 1 as it is a territory acquired by conquest and as such every citizen of India has a right to enter into that territory and if he so desires he could settle down therein. Mr. Lodha expressed at the bar that his client has a desire to establish himself in the newly acquired territory and being a citizen of India he cannot be restrained to move In any part of India, whether it is an acquired territory or a territory mentioned in Sub-clauses (a) and (b) of Clause (3) of Article 1.

4. This argument raises an important question whether the territory acquired by force automatically becomes an integral part of India and gives a right to a citizen of India to settle therein. Mr. Lodha relying on the observations of the Supreme Court in Berubari case, AIR 1960 SC 845, urged that a territory acquired through conquest is automatically absorbed or assimilated in the territory of India by virtue of the provision of Article 1(3)(c) as India as a sovereign State has an inherent right to acquire foreign territory,

5. Article 1(3)(c) of the Constitution, no doubt, provides that the territory of India shall comprise such other territory as may be acquired, but we shall have to examine whether mere physical possession or administrative control of a territory occupied during the hostilities would make that territory integral part of India under Article 1(3)(c) or some other formalities have got to be performed under the provisions of the Constitution to make such a territory an integral part of India. In this connection if the scheme of Fart I of the Constitution, which deals with the Union and its territories, is carefully examined, then we find that in order to admit a particular territory in India the Parliament has to enact law under Article 2 or Article 3 to formally assimilate such an acquired territory in India. Mere occupation of an enemy territory by the military forces would not make such territory integral part of India. Sub-clause (c) of Clause (3) of Article I uses the term 'acquired' which has a special meaning in International law and we shall, therefore, have to examine this question in the background of the connotation given to the expression 'acquired' in International law.

6. International law recognises various modes for acquisition of enemy territory and one of the recognised modes is acquisition through conquest. While dealing with this subject, L. Oppenheim in his Treatise on International Law has observed:

'Conquered enemy territory, although actually in the possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror. Annexation turns the conquest into subjugation. It is the very annexation which uno actu makes the vanquished State cease to exist, and brings the territory under the conqueror's sovereignty. Thus the subjugated territory has not for one moment been no State's fend, but passes from the enemy to the conqueror not through cession but through annexation.'

7. From this expression it is clear that mere physical control or the occupation of the enemy territory does not automatically make that territory part of the territory of the conqueror State. Something has got to be done by the conqueror to bring such a territory under its sway so that the conqueror may be recognised as a sovereign of the acquired territory. Oppenheim has described this act of the conqueror as an act of annexation. If, in the light of these observations of the learned author, we study the scheme of Part I of the Constitution, then we are left in no doubt that Articles 2 and 3 provide the mode for assimilating the territory acquired by India through force. Article 2 lays down that Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Similar provision is found in the Constitution of the U.S.A. in Article IV, Section 3 (1) which prescribes that new States may be admitted by the Congress into this Union. But no procedure has been prescribed by the Constitution of the U.S.A. to admit such a State into the Union. In our Constitution, however, Article 2 provides a definite mode to integrate the new territory in India. Under this provision of the Constitution Parliament can admit & territory into the Union or establish new States by enacting a law on such terms and conditions as may be imposed by it. Unless such a law has been enacted by Parliament, a territory though acquired through force and for the time being administered by India, cannot automatically be taken as integral part of India.

8. Mr. Lodha argued that Gadra City, which was formerly part of Sind (Pak.) is now being administered by Indian forces and the civil administration has been set up by the State of Rajasthan by appointing officers, and the expenditure on civil1 administration is incurred from the Consolidated Fund of the State of Rajasthan and, therefore, this territory for all purposes now forms part of India and cannot be treated differently from the other territories of India. As observed above, the necessary attribute to assimilate the occupied territory into India is not the de facto control over the territory exercised by India but it must be seen whether India is exercising its sovereignty over such a territory. The cession of the French territories in India affords an example to test whether by acquiring a de facto control of a particular territory it becomes an integral part of India or not.

9. By a Treaty of Cession the French Government agreed to hand over the administration of Pondicherry along with other French territories to the Indian Government. Under that agreement the administration was handed over to the Central Government even before the treaty of cession was actually ratified by the French Parliament. The question that arose before the Supreme Court in N. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1962 SC 797 was, whether before the treaty of cession was formally ratified by the French Parliament the territories which were administered by the Indian Government could be treated as part of India. Their Lordships, while dealing with this question, observed as follows:

'In cases where the only fact available is the de facto exercise of complete sovereignty by one State in a particular area, the sovereignty of that State over that area and the area being regarded as part of the territory of that State would prima facie follow. But this would apply normally only to cases where sovereignty and control was exercised by unilateral action. Where however the exercise of power and authority and the right to administer is referable to an agreement between two States, the question whether the territory has become integrated with and become part of the territory of the State exercising de facto control, depends wholly on the terms upon which the new Government was invited or permitted to exercise such control and authority. If the instruments evidencing such agreements negatived the implication arising from the factual exercise of Governmental authority then it would not follow that there is an integration of the territory with that of the administering power and that is precisely what has happened in the present case.'

10. It is true that when the territory of Sind came under the occupation of the Indian forces, as a civilised nation the Indian Government provided for civil administration to the people inhabiting that area, but this factor alone would not provide a clue to find out whether the Government of India by adopting this civilised mode of dealing with the people indicated its unequivocal desire to exercise its sovereignty over that territory. Learned counsel for the petitioner could not point out any declaration of the Government of India expressing its desire to treat this occupied territory as part of India. Under the International law when hostilities cease, then there is generally a treaty of peace between the warring nations and the fact whether the territories acquired by a conqueror State shall form part of that State or shall be given back to the vanquished State is decided by such a treaty or by a conduct of the vanquished State which may show its acquiescence to the occupation of such territory as the integral part of the conqueror State which can lead to an inference that the territory has become the part of the conqueror State or the conqueror may by its proclamation or otherwise declare unequivocally that such a territory would form part of the conqueror State, but nothing of that type has happened in the present case. Mr. Lodha wanted to refer to a statement made by the Defence Minister in a public meeting that Indian Government shall not return an inch of land conquered by it and from this he wants this Court to infer that the Indian Government had declared its intention unequivocally to assimilate this part of the territory into India. I regret, the Court cannot take notice of such utterances of individual Minister or political leaders while making public speeches. There are prescribed norms for the Government to express its intentions in such matters and if that is not followed by the Government then it cannot be said that it has declared its intention by permitting one of the important Ministers of the Cabinet to publicly announce the intention of the Government. We may once again refer to the constitutional provisions (Article 2) which require that before a territory is admitted into India the Parliament shall have to enact a law and unless that is done, it cannot be treated as an integral part of India. How Parliament acts in such circumstances can be ascertained by referring to the cases of Pondicherry and Goa where Parliament came out with legislations to make these territories the integral part of India.

11. It would be proper to clarify here that Article 1(3)(c) purports to make a formal provision for absorption and integration of any foreign territories which may be acquired by India by virtue of its inherent right as a sovereign State, but we cannot forget that this provision has found a place in our Constitution not in pursuance of any expansionist political philosophy but mainly for providing for the integration and absorption of the territories which may be required to be integrated and absorbed in the Indian territories which at the date of the Constitution continued to be under the dominion of the foreign States (See AIR 1960 SC 845).

12. In this view of the matter, I cannot accept that the petitioner can claim to have any fundamental right under the provisions of the Constitution to enter or settle in Gadra City which has not yet become the part of India and therefore the Court expresses its inability to issue any writ to the authorities controlling Gadra City directing them to allow the petitioner to enter and settle down in Gadra City.

13. The petitioner has raised certain important questions regarding the competence of the Prime Minister to enter into an agreement with the President of Pakistan to return the occupied territories to Pakistan and has also challenged the authority of the Union Government and the President of India to ratify this agreement which is popularly known as Simla agreement, but I regret this Court cannot examine the merits of these points as it has no jurisdiction to issue writs under Article 226 of the Constitution to these authorities. The writ of this Court travels beyond the territorial limits of Rajasthan only when the cause of action either wholly or in part has arisen in Rajasthan. The impugned agreement was concluded in Simla and it relates to the territories which are not part of Rajasthan; therefore, in this matter this Court cannot exercise its jurisdiction under Article 226 of the Constitution over the Central Government or the President. I therefore refuse to enter into the merits of the controversy raised by the petitioner in respect of the Simla agreement.

14. The petition is, therefore, dismissed summarily.


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