LEX/BDAD/0015/1974

Equivalent/Neutral Citation: 26 DLR(AD) (1974) 44

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Appeal No 23 of 1974
Decided On: 03.09.1974
Kazi Mukhlesur Rahman Vs. Bangladesh and Ors.
Hon'ble Judges/Coram:
A.M. Sayem, C.J., A.B. Mahmud Husain, Abdullah Jabir and Ahsanuddin Chowdhury, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ahmad Sobhan, Senior Advocate, Abdul Malek, Md
Ansar Ali, A.Z.M. Khalilullah, Md. Fazlul Karim and Md. Ruhul Amin, Advocates instructed
by S.M. Huq, Advocate-on-Record
For Respondents/Defendant: Syed Ishtiaq Ahmad, Additional Attorney-General, K.Z.
Alam, Dy. Attorney-General, Ismailuddin Barker, Mahmudul Islam and A.W. Bhuiyan,
Asstt. Attorney General instructed by A. Rab I, Advocate-on-Record
JUDGMENT
A.M. Sayem, C.J.
1 . This appeal arises out of an application under Article 102(2)(a)(ii) of the
Constitution. It is by the applicant before the High Court Division. The application was
summarily dismissed by the learned Judges of that Division, who however, granted the
appellant certificate under Article 103(2)(a) of the Constitution. The certificate contains
the following words: "Certificate for leave, as prayed for under Article 103(2)(a) of the
Constitution is granted."
2 . In his application the appellant prayed before the High Court Division for a
declaration that the recent agreement between the Governments of the People's
Republic of Bangladesh and the Republic of India signed on the 16th day of May, 1974
by the Prime Ministers of the two countries (hereinafter referred to as the Delhi Treaty)
which the appellant claimed, involved cession of Bangladesh territory was without
lawful authority and of no legal effect. The declaration was sought with special
reference to a part of what is known as Berubari Union No. 12 and the adjacent
enclaves that are under the administrative control of the Indian State of West Bengal.
The relevant portion of the Delhi Treaty, including its title and the preamble, is set
down below:-
"BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
AND THE GOVERNMENT OF THE REPUBLIC OF INDIA CONCERNING THE
DEMARCATION OF THE LAND BOUNDARY BETWEEN BANGLADESH AND INDIA
AND RELAFED MATTERS.
"The Government of the People's Republic of Bangladesh and the Government
of the Republic of India",
"Bearing in mind the friendly relations existing between the two countries",

28-04-2024 (Page 1 of 14) www.manupatra.com EWU Library

 "Desiring to define more accurately at certain points and to complete the
demarcation of the land boundary between Bangladesh and India."
"Have agreed as follows:-
*****
****
"Article 1
"The land boundary between Bangladesh and India in the areas mentioned
below shall be demarcated in the following manner:
"14. Berubari
India will retain the southern half of south Berubari Union No. 12 and
the adjacent enclaves, measuring an area of 2.64 square miles
approximately, and in exchange Bangladesh will retain the Dahagram
and Angarpota enclaves India will lease in perpetuity to Bangladesh an
area of 178 metres x 85 metres near 'Tin Bigha' to connect Dahagram
with Panbari Mouza (PS Patgram) of Bangladesh.
*****
*****
Article 5
"This agreement shall be subject to ratification by the Governments of
Bangladesh and India and Instruments of Ratification shall be exchanged as
early as possible. The Agreement shall take effect from the date of the
exchange of the Instruments of Ratification."
It will appear that the Delhi Treaty, prima facie, purports to determine the boundary
between Bangladesh and India.
3 . At the hearing of the appeal respondents, namely, the Government of the People's
Republic of Bangladesh and the Prime Minister, raised preliminary objections as to the
competency of the appeal as well as the maintainability of the application before the
High Court Division presented under Article 102(2)(a)(ii) of the Constitution.
4. The first objection raised on behalf of the respondents was that the learned Judges of
the High Court Division having failed to specify the question or questions relating to the
interpretation of the Constitution which arose for consideration, the certificate was
plainly defective and consequently the appeal was incompetent. Reliance was placed in
this connection on Banarasi Prashad vs. Kashi Krishna Narain, (LR 28 Indian Appeals
11) Radha Krishna Das vs. Rai Krishan Chand LR 28 Indian, Appeals 182) and Radha
krishna Ayyar vs. Swaminatha Ayyar (LR 48 Indian Appeals 31) as well as Member,
Board of Revenue vs. Akhtar Khan (PLD 1968 SC 270) and Sashi Bhusan vs. Asghar Ali
[20 DLR (SC) 217.]
5 . The three aforementioned Privy Council cases related to certificate under rule 3 of
Order 45 of the Code of Civil Procedure. It will suffice to refer to the case of Radha
Krishna Ayyar (LR 48 Indian appeals 31) in which the other two Privy Council cases
have been relied upon. In this case the certificate granted by the High Court of Madras
was in the following terms; "It is hereby certified that, as regards the value of the

28-04-2024 (Page 2 of 14) www.manupatra.com EWU Library

subject-matter and the nature of the question involved, the case fulfils the requirements
of sections 109 and 110 of the Code of Civil Procedure, and the case is a fit one for
appeal to his Majesty in Council". The Judicial Committee observed that when a
certificate is granted it is of the utmost importance that the certificate should show
clearly upon which ground it is based. The Judicial Committee proceeded thereafter to
say:
"There is no indication in the certificate of what the nature of the question is
that it is thought was involved in the hearing of this appeal, nor is there
anything to show that the discretion conferred by section 109(c) was invoked or
was exercised. Their Lordships think is should be brought to the attention of
the Indian Courts that these certificates are of great consequence, that they
seriously affect the rights of litigant parties, and that they ought to be given in
such a form that it is impossible to mistake their meaning upon their face".
The appeal was dismissed, the Judicial Committee having also found no reason to grant
special leave to appeal.
6 . The other two cases relied upon by the respondents, namely, Member, Board of
Revenue vs. Akhtar Khan and Sashi Bhusan vs. Asgar Ali related to certificate of fitness
for appeal to the Supreme Court of Pakistan under Article 58(2)(a) of the Constitution of
1962. In the case of Member, Board of Revenue the certificate did not specify as to what
if any question of law as to the interpretation of the Constitution was involved in the
case. Being itself unable to discover any such question, the Supreme Court regretted
that the High Court should have granted the certificate without specifying the question
of law relating to the interpretation of the Constitution which it thought arose in the
case Since, however, no objection was taken as to the validity of the certificate, the
appeal was disposed of on merits. In Sashi Bhusan's case S.A. Rahman CJ, who
delivered the main judgment referred to the above Privy Council decisions as also some
other cases and repelled an argument that the mere physical fact of the granting of
certificate by the High Court should preclude the Supreme Court from examining the
propriety of the certificate on which the appeal was based. The learned Chief Justice
was of the opinion that this would lead to the absurd conclusion that the jurisdiction of
the Supreme Court was subject to control by the High Court. In his supporting judgment
Sajjad Ahmed Jan, J., added that the grant of a certificate of fitness for appeal was
judicial function, which should be performed properly with the care and certitude of a
judicial mind and not as a mechanical act; and further that it a fitness certificate did not
disclose a valid basis and found to have been granted in disregard of the constitutional
condition which regulates it, namely, that the case must involve a substantial question
of law as to the interpretation of the constitution, the Supreme Court would 'strike it
down in termination of the proceeding which had been allowed to commence without
any foundation and on a wrong lead."
7 . We are in respectful agreement with the above views Article 103(2)(a) of our
Constitution, inter alia, provides that an appeal to the Appellate Division of the Supreme
Court from the judgment, decree, order and sentence of the High Court Division shall lie
as of right where the High Court Division certifies that the case involves a substantial
question of law as to the interpretation of this Constitution. In the instance case a
certificate purported to be under Article 103(2)(a) is there, but it gives no indication of
application of the judicial mind to the question as to whether the case is a fit one for
appeal to this Division. It is not only that the question or questions of law as to the
interpretation of the Constitution which the learned Judges might have thought needed
our consideration have not been mentioned, the certificate speaks of 'leave' which did

28-04-2024 (Page 3 of 14) www.manupatra.com EWU Library

not concern that Division at all. Strangely enough, the learned Judges thought the
points raised in the application were so simple as to merit summary disposal and yet
they granted the certificate Such a mechanical approach cannot but call for strong
disapproval. Indeed it was not that the appellant alone who felt aggrieved by the
summary dismissal of his application by the High Court Division, the respondents also
made the grievance that they were prejudiced by the summary disposal of the
application since because of this they were denied the opportunity of filing an affidavit
in that Division incorporating material facts.
8. In view, however, of the objection raised by the respondents against the form of the
certificate, by way of abundant caution, the appellant filed a petition for special leave to
appeal in which he raised the question whether Article 55(2) of our Constitution, by
virtue of which the Prime Minister exercises the executive power of the Republic,
authorises him to enter into an international agreement of the kind as Delhi Treaty. This
is a constitutional question which also floats on the surface of the brief judgment of the
High Court Division, summarily dismissing the appellant's application. We are,
therefore, of the opinion that the appeal before this Division is not incompetent, on the
score of defective certificate.
9. The second objection raised on behalf of the respondents relates to standing or locus
standi of the appellant to move the High Court Division under Article 102(2)(a)(ii) of
the Constitution which runs as follows:--
"(2) The High Court Division may, if satisfied that no other equally efficacious
remedy is provided by law-
(a) on the application of any person aggrieved, make an order--
(i)...........................
(ii) declaring that any act done or proceeding taken by a
person performing functions in connection with the affairs of
the Republic or of a local authority has done or taken without
lawful authority, and is of no legal effect."
10. Admittedly the appellant not being a resident of any part of the territories involved
in the Delhi Treaty, the respondents contended that the appellant could have no interest
therein which could be affected by the treaty and, as such, he was not a 'person
aggrieved' within the meaning of Article 102(2) of the Constitution entitling him to
apply thereunder. In this connection the respondents referred to several decisions of the
American and Indian jurisdictions, as well as one decision of the Australian High Court.
The American decisions are McCabe vs. Atchison 235 US 151 : 59 Led 169),
Massachusetts vs. Melton; Fronthingham vs. Mellon (262 US 447 : 67 Led 1078) and
Joint Anti Fascist Com vs. McGrath (31 US 123 : 95 Led 817). The Indian decisions are
Charanjit Lal vs. Union of India (MANU/SC/0009/1950 : MANU/SC/0009/1950 : AIR
1951 SC 41), Calcutta Gas Co., (Prop) Ltd. vs. State of West Bengal
(MANU/SC/0063/1962 : MANU/SC/0063/1962 : AIR 1962 SC 1044) and Maganbhai
Ishwarbhai Patel vs. Union of India (AIE 1969 SC 783). The lone decision of the
Australian jurisdiction is Anderson vs. The Commonwealth (47 CLR 50).
11. McCabe vs. Atchison arose out of a suit for injunction restraining the defendants
from complying with the provisions of a Statute for reasons that it was repugnant, inter
alia, to the commerce clause of the Constitution of the United States as well as the 14th
Amendment. The relief asked for by the plaintiffs was refused on the ground of absence

28-04-2024 (Page 4 of 14) www.manupatra.com EWU Library

of standing or locus standi. The Supreme Court observed:-
"It is an elementary principle that, in order to justify the granting of this
extraordinary relief, the complainant's need of it, and the absence of an
adequate remedy in law, must clearly appear. The complainant cannot succeed
because someone else may be hurt. Not does it make any difference that other
persons who may be injured are persons of the same race or occupation. It is
the fact, clearly established, of injury to the complainant-not to others-which
justifies judicial intervention."
1 2 . In Massachusetts vs. Mellon the constitutionality of an Act of Congress viz, the
Maternity Act; which provided for appropriations to be apportioned amongst such
several states as might accept and comply with its provisions, was challenged. It was
pointed out that the relation of a tax-payer of a municipality to the municipal
corporation was different from the relation of a tax-paver of the United States to the
Federal Government since the interest of a tax-payer of the United States in the monies
in the Treasury-partly realised from taxation and partly from other sources-is shared
with millions of others; is comparatively minute and indeterminable; and the effect
upon future taxation of any payment out of funds so remote, fluctuating, uncertain that
no basis is afforded for an appeal to the preventive powers of a Court of equity.
Thereafter the following observation was made:-
"The party who invokes the power must be able to show not only that the
statute is invalid, but that he has sustained or is immediately in danger of
sustaining some direct injury as the result of its enforcement and not merely
that he suffers in some indefinite way in common with the people generally".
Joint Anti-Fascist Refugee Com vs. McGrath arose out of suits for declaratory
and injunctive reliefs by three organisations seeking removal of their names
from a list of groups designated by the Attorney-General as communist, raising
various constitutional objections and asserting that they were organised for a
permissible purpose only. The defendant Attorney General's motion to dismiss
the suits were granted by Courts below, in two cases on the ground that the
plaintiffs failed to state a cause of action and in the third case on the ground
that the plaintiff had no standing to sue. The majority of the Justices including
Mr. Justice Frankfurter agreed, though on different grounds that the
complaining organisations had standing to sue. Our attention was drawn on
behalf of the respondents to certain observations of Mr. Justice Frankfurter to
the effect that the simplest application of the concept of "standing" is to
situations in which there is no real controversy between the parties, that a
petitioner does not have a standing to sue unless he is "interested in and
affected adversely by the decision" of which he seeks review, that his "interest
must be of a personal and not of an official nature". That his interest must not
be wholly negligible as that of a tax-payer of the Federal Government is
considered to be; and further that a litigant must show more than that "he
suffers in some indefinite way in common with people generally". He, however,
added that adverse personal interest even of such an indirect sort as arises
from competition is ordinarily sufficient to meet constitutional standards of
justiciability. Mr. Justice Frankfurter decided that the plaintiffs had standing to
sue and the action presented a justiciable controversy, because the plaintiffs
objected to the validity of the executive order which, apart from principle of
Governmental immunity, would be clearly actionable in common law.' As to the
constitutional issues he held that due process was violated."

28-04-2024 (Page 5 of 14) www.manupatra.com EWU Library

13. Of the three Indian decisions in Charanjit Lal's case the principle quoted above from
McCabe vs. Atchison was referred to and concurred in by Fazal Ali, J. In the case of
Calcutta Gas Co. what was held was that the right that can be enforced under Article
226 of the Indian Constitution must ordinarily be the personal or individual right of the
petitioner himself though it need not be so in the case of Habeas Corpus or Quo
Warranto. We will refer to the third Indian decision after having considered the
Australian case of Anderson vs. The Commonwealth (47 CLR 50); in which an
agreement between the Commonwealth of Australia and the State of Queensland was
involved. The substance of the agreement was that the Government of the
Commonwealth prohibited importation of certain kinds of sugar upto a certain date,
while the Government of Queensland would acquire raw sugar in Queensland and New
South Wales for certain specified prices. This increased the cost of sugar. It was held
that the plaintiff, who had no interest in the subject-matter beyond that of any other
member of the public, had no right to bring the action which was for a declaration that
the agreement in question was illegal and invalid. It was, however, pointed out that the
"public is not or should not be without remedy, for the Attorney-General of the
Commonwealth or of any of the states sufficiently interested, might take proceedings
necessary to protect their rights and interest"
14. The appellant did not dispute the principles enunciated in the aforesaid case; nor
can there be any reason for differing from those principles, generally. The question,
however, is whether regard being had to the special features of the instant case, the
appellant could be given a hearing under Article 102(2) of the Constitution.
1 5 . The instant case involves an outstanding Constitutional issue relating to an
international treaty concerning an alleged cession of territory and affecting the rights of
the people of Bangladesh as a whole. It cannot be expected that any person residing in
the territory involved in the Delhi Treaty would move such an application since
admittedly it is under the administrative control not of Bangladesh but of India. In none
of the above mentioned decisions the question of international treaty came in for
consideration, far less a treaty involving cession if territory. The only decision cited by
the respondents that approximates the instant case and which remains to be considered
is Maganbhai Ishwarbhai Patel vs. Union of India (MANU/SC/0044/1969 :
MANU/SC/0044/1969 : AIR 1969 SC 783); in which an international arbitration came up
for examination relating to what is known as the Rann of Kutch, a marshy waste land
which was in some seasons under water and in others muddy desert without any
habitation. Admittedly, neither India nor Pakistan had any control or possession in any
part of the Rann. There was a long standing dispute over this area between India and
Pakistan which resulted in border clashes and ultimately culminated into open armed
hostilities in April, 1965. A ceasefire was arranged followed by a joint proposal for
arbitration. The arbitrators having given an award dividing the Rann between Pakistan
and India by a boundary line, some persons moved the High Court under Article 206 of
the Indian Constitution and having lost there, took appeals to the Supreme Court of
India. Some others moved the Supreme Court direct under Article 32 of the
Constitution. None of me petitioners could claim to be a resident of the Rann of Kutch
All of them, however, claimed locus standi to move the court on the basis of their
fundamental rights, to travel, to reside or settle down and to acquire and hold property
in the Rann by virtue of clauses (d), (e) and (f) of Article 19(1) of the Indian
Constitution. One of them named Madhu Limaye put forward an additional plea that he
had attempted to penetrate the Rann to reconnoiter the possibility of settlement but was
turned back. The Supreme Court heard Mr. Madhu Limaye as well as the other
petitioners, Mr. Madhu Limaye for his additional plea and the rest because they might
also contribute to the result of the hearing. The Supreme Court observed:-

28-04-2024 (Page 6 of 14) www.manupatra.com EWU Library

 "The only person who can claim deprivation of fundamental rights is Mr. Madhu
Limaye, although is his case also the connection was temporary and almost
ephemeral. However, we decided to hear him and as we were to decide the
question, we heard supplementary arguments from the others also to have as
much as assistance as possible. But we are not to be taken as establishing a
precedent for this Court which declines to issue a writ of mandamus except at
the instance of party whose fundamental rights are directly and substantially
invaded or are in imminent danger of being so invaded. From this point of view
we would have been justified in dismissing all petitions except perhaps mat of
Madhu Limaye."
16. On the question of locus standi the appellant contended before us mat since the
remedies available under Article 102(2) of our Constitution are discretionary, me words
"any person aggrieved" should be construed liberally and given a wide meaning,
although in the facts and circumstances of a particular case the Court may regard the
personal interest pleaded by a petitioner as being slight or too remote. In support of
this contention the appellant relied upon Mia Fazl Din vs. Lahore Improvement Trust
(1969) 21 DLR (SC) 225. In delivering the unanimous judgment of the Supreme Court
of Pakistan, Hamoodur Rahman, CJ, had occasion to say that the right considered
sufficient for maintaining a proceeding of this nature is not necessarily a right in the
strict juristic sense but it is enough if the applicant discloses mat be has personal
interest in the matter which involves loss of some personal benefit or advantage or the
curtailment of a privilege or liberty of franchise.
17. We have given me respondents objection as to the appellant's locus standi to move
the High Court Division our anxious consideration. It appears to us mat me question of
locus standi does not involve the Court's jurisdiction to hear a person but of the
competency of the person to claim a hearing, so that the question is one of discretion
which the Court exercises upon due consideration of the facts and circumstances of
each case. The appellant has complained mat he is under an impending threat of
deprivation of his fundamental rights under Article 36 of the Constitution and his right
of franchise. Because of mis as well as of the exceptional and extraordinary
constitutional issue raised in mis case involving consideration of an international
agreement between this country and me friendly Republic of India, we decided to hear
me appellant. In the recent case of Blackburn vs. Attorney-General (1971) 1 WLR 1037;
involving a treaty, namely, the Treaty of Rome for being a member of the European
Economic Community which was yet to be signed by the United Kingdom and on which
no agreement had yet been reached, one Mr. Blackburn challenged the treaty seeking a
declaration to the effect that by signing the treaty of Rome the Government "will
surrender in part the sovereignty of the Crown in Parliament and would surrender it
forever". "Mr Blackburn pointed out that regulations made by the European Community
would become automatically binding on the people of the Union Kingdom and that all
the Courts, including the House of Lords, would have to follow the decisions of the
European court in certain defined respects, such as the construction of the treaty. Thus
Mr. Blackburn challenged the treaty of Rome of the capacity of a citizen of the United
Kingdom and a member of the general public A point was raised as to whether Mr.
Blackburn had the standing or locus standi to come before the Court Lord Denning MR.
observed as follows--
"That is not a matter which we need rule upon today. He says that he feels very
strongly and that it is a matter in which many persons in this country are
concerned "I would not myself rule him out on the ground that he has no
standing. But I do rule him out on the ground that these courts will not impugn

28-04-2024 (Page 7 of 14) www.manupatra.com EWU Library

 the treaty-making power of Her Majesty, and on the ground that insofar as
Parliament enacts legislation we will deal with that legislation as and when it
arises."
18. The fact that the appellant is not a resident of the southern half of South Berubari
Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in
the way of his claim to be heard in this case we heard him in view of the constitutional
issue of grave importance raised in the instant case involving an international treaty
affecting the territory of Bangladesh and his complaint as to an impending threat to his
certain fundamental rights guaranteed by the constitution, namely, to move freely
throughout the territory of Bangladesh, to reside and settle in any place therein as well
as his right of franchise Evidently, these rights attached to a citizen are not local. They
pervade and extend to every inch of the territory of Bangladesh stretching upto the
continental shelf.
19. The respondent's third objection was that the treaty-making being an act of state
the Delhi Treaty was not amenable to judicial review. Our attention was drawn in this
connection to Halsbury's Laws of England (3rd Edition). Vol. 7, page 279, where an act
of state has been defined as an act of the executive as a matter of policy in the course
of its relations with another state, including its relations with the subjects of that state,
unless they are temporarily within the allegiance of the Crown at page 281 it has been
stated that typical acts of state are the making and performance of treaties, the seizure
or annexation of land or goods in right of conquest, or the declaration of war or of
blockade. It has also been pointed out in that volume at page 280: "There can be no act
of state against any one who owes allegiance to the Crown." This principle was
propounded by Lord Herscheil in Walker vs. Baird (1892) AC 491 PC and followed by
the House of Lords in Johnstone vs. Pedlar (1921) 2 AC 262. This principle has again
recently been reiterated by Lord Reid in Nissan vs. Attorney-General (1970) AC 179. We
are clearly of the opinion that in peace time the plea of act of state is not available in an
action involving deprivation of rights and liberties of the citizen. The Courts have
always intervened with a view to examining if the plea of act of state could be taken in
defence against a citizen. The jurisdiction of courts cannot be excluded by merely
raisinga plea of act of state.
20. The fourth and the last objection raised by the respondents is that the application
before the High Court Division was premature. In support of this objection, the
respondents' contentions were two-fold, Reference was made to Attorney-General of
Canada vs. Attorney General of Ontario (MANU/PR/0031/1937 : MANU/PR/0031/1937 :
AIR 1937 PC 82); where Lord Atkin observed that it was essential to keep in mind the
distinction between (1) the formation and (2) the performance "of the obligations
constituted by a treaty using the word as comprising any agreement between two or
more sovereign states; and further that the question is not "how is the obligation
formed, that is the function of the executive; but bow is the obligation to be performed
and that depends upon the authority of the competent legislature or legislatures'. The
respondents contended before us that the mere making of a treaty does not affect the
citizen who must wait till the performance of the obligations of the treaty. There can be
no dispute as to what Lord Atkin said. But we are unable to accept the contention of the
respondents that a citizen cannot be allowed to move the court before the obligations
under the treaty are performed. In the instant case the mere signing of the treaty has
resulted in an impending threat to the appellant's rights as a citizen.
21. The second branch of the respondents contention in support of the fourth objection
appears, however, to have substance. We have quoted above the last article in the Delhi

28-04-2024 (Page 8 of 14) www.manupatra.com EWU Library

Treaty which says that it is subject to ratification and that it would take effect "from the
date of the exchange of the Instruments of Ratification". The respondents contended
that since the Delhi Treaty was in terms stipulated to come into effect only upon the
happening of the event of ratification, and exchange of the instruments of ratification,
the application before the High Court Division seeking a declaration that the Delhi
Treaty was without lawful authority and of no legal effect was premature. True it is that
though the Delhi Treaty is dispositive in nature, in the face of the express stipulation
just referred to it cannot be said to be an executed treaty. Something is yet to be done
before it can be so. We, therefore, agree with the respondents that the application
before the High Court Division out of which his appeal has arisen was premature,
because there can be no question of a document being declared to be without lawful
authority and of no legal effect when the document itself stipulates that it will be
effective only on the happening of a certain event in future, namely, the exchange of
instruments of ratification. This would suffice for disposing of the appeal which is liable
to be dismissed on this ground alone.
22. Since, however, we have heard the parties on merits in relation to the question of
interpretation of Article 55(2) of our Constitution, we feel that we should express our
opinion on this question.
23. It may be mentioned at this stage that the appellant did not dispute the proposition
that treaty-making is an executive act and so also ratification, if a treaty contains
provision for ratification and that both fall within the ambit of the executive power of
the State. Let us now examine Article 55(2) of our Constitution.
24. Article 55(2) of the Constitution says: "The executive power of the Republic shall,
in accordance with this Constitution, be exercised by or on the authority of the Prime
Minister." The Prime Minister, or one in his authority, is thus required to exercise the
executive power in accordance with the Constitution and not otherwise. This is in
keeping with the settled principle that Parliament has constitutional control over the
Executive. Clause (2) of Article 143 of our Constitution says: "Parliament may from time
to time by law provide for the determination of the boundaries of the territory of
Bangladesh and the territorial waters and the continental shelf of Bangladesh." The
Prime Minister cannot, therefore, unilaterally determine the boundaries of the country.
This can only be done by law enacted by parliament in that behalf.
"We have earlier set out the fourteenth paragraph of Article 1 of the Delhi Treaty which,
inter alia, says that India will retain the southern half of south Berubari Union No. 12
and the adjacent enclaves.
2 5 . It is worth noting that as early as on September 10, 1958 there was a treaty
between Pakistan (of which this country was then a province named East Pakistan) and
India resolving certain territorial disputes, Pakistan claiming sovereignty over those
territories on the basis of the Radcliffe Award which was given on the eve of the
partition of India under section 3 of the Indian Independence Act, 1947. The treaty was
known in this country after the names of the then respective Prime Ministers of Pakistan
and India as Noon-Nehru Pact. It contained several items of dispute between the two
countries, including enclaves. As to Berubari Union No. 12 and the enclaves the
agreement arrived at by the High Contracting Parties was recorded in Noon-Nehru Pact,
which contained no provision for ratification and was duly signed and executed by their
respective accredited agents, in the following manner:-
"(3) Berubari Union No. 12.

28-04-2024 (Page 9 of 14) www.manupatra.com EWU Library

 "This will be so divided as to give half the area to Pakistan, 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 corner of Debiganj thana. The
division should be made in such a manner that the Cooch Behar enclaves
between Panchagar thana of East Pakistan and Berubari Union No. 12 of
Jalpaiguri thana of West Bengal will remain connected as at present with Indian
territory and will remain with India. The Cooch Behar enclaves lower down
between Boda thana of East Pakistan and Berubari Union No. 12 will be
exchanged along with the general exchange of enclaves and will go to
Pakistan."
2 6 . Consequent upon the conclusion of Noon-Nehru Pact the southern half of south
Berubari Union No. 12 together with the adjacent enclaves, thus fell in the share of
erstwhile East Pakistan. Noon-Nehru Pact did not contain any provision for ratification,
evidently signifying a mainifest intention on the part of the High Contracting Parties that
the details of the treaty settling the disputes between the two countries would
immediately come into effect upon its execution by their accredited agents. It was
accordingly a dispositive treaty, and, as such, internationally binding no question of a
fresh boundary dispute could, therefore, arise. Besides, soon after the execution of
Noon-Nehru Pact, Constitution (Ninth Amendment) Act. 1960 was enacted by the Indian
Parliament on the advice tendered by the Supreme Court of India under Article 143 of
the Indian Constitution: See MANU/SC/0049/1960 : MANU/SC/0049/1960 : AIR 1960
SC 845; In the Ninth Amendment the manner in which disputes relating to Berubari and
the enclaves were resolved by Noon-Nehru Pact were incorporated Actual physical
possession of the portion of Berubari and the enclaves that were given to Pakistan could
not be made over to her owing to certain litigations pending in the Indian Supreme
Court and due to hostilities that broke out, between India and Pakistan in September,
1965. That cannot, however, be of any consequence since the question of sovereignty
over that portion of territory had already been settled and recognised by the common
consent and conduct of Pakistan and India demonstrated by Noon-Nehru Pact, which
was again followed by the aforesaid Constitutional amendment in India, incorporating
the details of Noon-Nehru Pact. The southern half of south Berubari Union No. 12,
together with the enclaves, thus formed an inseparable and integral part of the territory
of Bangladesh in view of Article 2(a) of our Constitution which defined the territory of
the People's Republic of Bangladesh as comprising "the territories which immediately
before the proclamation of independence on the 16th day of March, 1971 constituted
East Pakistan". Agreeing to their retention by India is stipulated in the Delhi Treaty
cannot but, therefore, involve cession of territory by Bangladesh. In this connection we
will content ourselves by referring to three leading cases, namely, Columbia vs.
Venezuela (UN Rep, Vol. I, page 223), Belgium vs. Netherlands reported in (1959) ICJ
Reports page 209 and Cambodia vs. Thailand reported in (1962) ICJ page 6.
27. In Columbia vs. Venezuela (UN Rep. Vol. I, page 223), which involved a boundary
dispute between the two countries, at page 279 it has been noticed that the Swiss
Federal Council refused to accept the view that sovereignty does not pass until delivery
in its award in 1922 in the dispute in question and made the following observation;-
"A state which occupied a territory the sovereignty over which has been
recognised as belonging to another State has no right to insist on formal
delivery of territory which it retains without legal rights; its holding of the
territory in question has ceased to be legitimate with the entry into force of the
sentence. The State which continues to occupy the territory in contradiction to
the terms of the award has only one duty, that is to say, to evacuate the

28-04-2024 (Page 10 of 14) www.manupatra.com EWU Library

 territory in question. The other State has the right to proceed to occupation
subject to such duties of country as may be required by the necessity to avoid
conflicts and to inform inhabitants."
28. In Belgium vs. Netherlands (1959) ICJ Reports page 209; certain parcels of land
lying between Belgium and Netherlands remained of uncertain sovereignty for many
years since 1843. By special agreement between the two states, the International Court
of Justice was asked to determine which of the two states had sovereignty over those
parcels of land. The controversy arose in connection with an error in the boundary
convention of 1843. The Court determined that the title to the disputed land vested in
Belgium by virtue of the 1843 boundary agreement, despite the fact that during most of
the period following the boundary agreement Netherlands officials had assumed that the
area in question formed part of their state in consequence of the exercise of their
authority in the area through the imposition of taxes and taking other administrative
routine acts. The Court took the view that if possession is adverse, the display of acts of
sovereignty which are "largely of a routine and administrative charter performed by
local officials are insufficient to display Belgium sovereignty established by that
convention." In Cambodia vs. Thailand (1962) ICJ page 6; a controversy of exceptional
interest arose involving the boundary between the two countries and the territorial
sovereignty over the area in which the Temple of Preah Vihear was located. The
controversy was submitted to the International Court of Justice in 1959. Until Cambodia
attained her independence in 1953 she was part of French Indo-China. It was common
ground that the boundary dispute was settled in the period 1904-1908 between France
and Siam (as Thailand was then called) and, in particular, that the sovereignty over
Temple of Preah Vihear depended upon the boundary treaty dated February 13, 1904,
and upon events subsequent to that date. As late as in 1962 the Court decided on the
basis of a map prepared by the Boundary Commission in 1907 that the Temple was
situated in the territory under the sovereignty of Cambodia.
29. By virtue of Noon-Nehru Pact of 1958 earlier we have shown, Pakistan's sovereignty
over the southern half of south Berubari Union No. 12, together with some other lands
including the adjacent enclaves was permanently settled and recognised by India,
though their actual physical possession' continued to lie with India. That also appears to
be the reason why the Delhi Treaty says that India will 'retain' the "southern half of
south Berubari Union No. 12 and the adjacent enclaves". Agreeing to such retention of
the portion of Berubari by India, in our view, cannot but entail peace time cession of
territory by Bangladesh to India. Even if the Delhi Treaty had resulted only in the
settlement of boundary between this country and the neighbouring friendly Republic of
India, Article 143(2) of our Constitution would intervene and require enactment by
Parliament determining the boundary. Cession of territory however being involved in
this case, the question of taking recourse to Article 142 will arise.
30. We cannot help mentioning that the Delhi Treaty contains some reference also to
perpetual lease, exchange of enclaves along with exchange of territories under "adverse
possession" of the parties. All these will create difficulties in implementation of the
provisions of the Delhi Treaty, necessitating a very close examination of the details
thereof vis-a-visa Noon-Nehru Pact.
3 1 . On the question of necessity of the assent of Parliament to treaties involving
cession of territory, even in countries without written constitution, reference may be
made to certain standard treaties on the subject. In Hood Phillips Constitutional and
Administrative Law, 4th Edition the following passage occurs at page 267.

28-04-2024 (Page 11 of 14) www.manupatra.com EWU Library

 "The Crown was persuaded to seek Parliamentary approval for the cession of
Heligoland to Germany in 1890 (Anglo-German Agreement Act, 1890), and
since then it has been the practice to ask Parliament to confirm cessions eg.,
Anglo-Italian (East African Territories) Act 1925; Dindigs Agreement Approval
Act, 1934; Anglo-Venezuelan Treaty (Island of Patos) Act, 1942. The Anglo-
Irish 'Treaty" confirmed by the Irish Free State (Agreement) Act, 1922 was in a
special category. Whatever the law may be this seems to be now the convention
Indeed, convention probably demands that Parliament should be consulted
beforehand, as in the case of the cession of Jubaland to Italy in 1927"
Wade and Phillips in their work Constitutional Law, 8th Edition, 1971, at page 278 say
as follows:-
"It is the practice, and probably by now may be regarded as a binding
constitutional convention, that treaties involving the cession of territory require
the approval of Parliament given by a statute."
32. Peter G Richards in his Parliament and Foreign Affairs, 1st Edition, 1971, at page
42; says:-
"Whether the Crown has the right under the Royal Prerogative to cede territory
without Parliamentary consent is a matter of legal argument. Holdsworth was of
the opinion that it has such power. But since the cession of Heligoland to
Germany in 1890 there have been many cases in which treaties involving
territorial transfer have been approved by Parliament in subsequent legislation.
It is thus regular practice, if not a binding constitutional convention, for
legislative sanction to be obtained."
In the Law of Treaties by Lord McNair, 1961 Edition, at page 96; the following passage
occurs:-
"(iv) Certainly upto half a century ago minor cessions of British territory
frequently took place without Parliamentary sanction, though many of them
were not true cessions but either a withdrawal of protectorate or a
relinquishment of a doubtful claim. But, at any rate from 1890 onwards, there
are several precedents of treaties of cession receiving Parliamentary sanction in
the form of a statute. These are the Anglo-German Agreement Act, 1890,
sanctioning the cession to Germany of Heligoland; the Anglo-French Convention
Act, 1904. Where the treaty for the cession of certain British territory to France
was made 'subject to the approval of their respective Parliaments'; the Anglo-
Italian (East African Territories) Act, 1925, which gave approval to a treaty
involving, as a consequence of the rectification of a frontier a cession of British
protected territory; the Straits Settlements and Johore Territorial Waters
(Agreement) Act, 1928; the Dindings Agreement (Approval) Act, 1934; and the
Anglo-Venezuelan (Island of Patos) Act, 1942, approving a treaty of cession by
Great Britain.
There is every reason to expect that these recent precedents will be followed in
the future, whatever may be the mode by which the territory was originally
acquired; and it is unlikely that the Crown will agree by treaty to cede any
territory without being sure that Parliament would approve, or, if in doubt,
without inserting a clause making the cession dependent upon Parliamentary
approval".

28-04-2024 (Page 12 of 14) www.manupatra.com EWU Library

33. In his Introduction to International Law, 7th Edn., page 90 J G Starke has also said
that it has been established that "treaties involving the cession of British territory
require the approval of Parliament given by a Statute",
3 4 . It will be evident from the above ex-tracts from works of authors of repute on
international law that even in a country like England which is not governed under a
written Constitution, the modern trend is to obtain the assent of Parliament in case of
cession of territory.
35. Ours is a written Constitution. We have already seen that the head of the Executive,
namely, the Prime Minister cannot unilaterally determine the boundaries of Bangladesh
which has to be done by a law of Parliament under Article 143(2) of our Constitution. It
cannot but be more so when cession of territory is involved. This limitation on the part
of the head of the Executive of Bangladesh is on the face of it such a "manifest and
notorious" restriction on his treaty-making power that any such treaty entered into by a
foreign state with Bangladesh without the sanction of the Parliament of Bangladesh will
be ultra vires and cannot pass title. This view finds authoritative support from authors
of international repute on the subject.
3 6 . In his International Law, Second Edition, while dealing with countries having
written Constitution, Professor DPO Connell has observed at page 437:-
"The capacity to transfer territory is absolute in International Law, but the latter
obviously cannot ignore the question of capacity of the acting authorities in
Municipal Law. The Constitution determines the agency who is competent to
dispose of national territory, and if a purported transfer is ultra vires no title is
acquired internationally".
Such is also the opinion of Oppenheim in his work International Law, Vol. 1, 8th
Edition. It has been observed at page 547:
"The Constitutional Law of the different States may or may not lay down special
rules for the transfer or acquisition of territory. Such rules can have no direct
influence upon the rules of the Law of Nations concerning cession, since
Municipal Law can neither abolish existing nor create new rules of International
Law. But if such Municipal rules contain constitutional restrictions on the
Government with regard to cession of territory, these restrictions are so far
important that such treaties of cession concluded by Heads of States or
Governments as violate these restrictions are not binding."
Charles G Fenwick in his work International Law, Third Indian Reprint 1971, after
having examined the views of standard authors has observed at page 524 under the
heading "Effect of failure to observe Constitutional procedures":-
"What is the validity of a treaty which has been ratified by the Head of the State
without submission to the Legislature in accordance with the provisions of the
Constitution? A number of authors have held that foreign governments are
justified in considering the act of the Head of the State as definitive, leaving it
to Constitutional Law to determine whether he has acted within the scope of his
powers. Constitutional processes, they hold, vary in the different states: and it
is sufficient that the Head of the State shall declare that they have been fulfilled
to consider them as fulfilled. The majority of writers, however, maintain that
foreign governments should be held to a knowledge of the Constitutional
prerequisites of ratification is each country with which they are dealing; and

28-04-2024 (Page 13 of 14) www.manupatra.com EWU Library

 they insist that a treaty which has been ratified without the proper observance
of the requirements is ipso facto invalid, whatever the proclamation of the Head
of the State may assert in that respect."
We will conclude this chapter by a reference to the Vienna Convention on the Law of
Treaties, 1969 to be found in Basic Documents in International Law, Edited by Brownlie,
Second Edition (1972) at page 251. Article 46 of the Convention which is under section
2 (Invalidity of Treaties) runs as follows:
Article 46.
"Provisions of Internal Law regarding competence to conclude treaties.
1. A State may not invoke the fact that its consent to be bound
by a treaty has been expressed in violation of a provision of its
Internal Law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and
concerned a rule of its Internal Law of fundamental
importance.
2. A violation is manifest if it would be objectively" evident to
any State conducting itself in the matter in accordance with
normal practice and in good faith."
37. It may be also mentioned that in India too there can be no cession of territory
without amendment of the Constitution. The latest pronouncement of the Indian
Supreme Court on this question is to be found in Maganbhai Iswarbhai Patel vs. Union
of India (MANU/SC/0044/1969 : MANU/SC/0044/1969 : AIR 1969 SC 783) earlier
noticed in another context.
3 8 . There can thus be no escape from the position that though treaty-making falls
within the ambit of the executive power under Article 55(2) of the Constitution, a treaty
involving determination of boundary, and more so involving cession of territory, can
only be concluded with the concurrence of Parliament by necessary enactment; in case
of determination of boundary by an enactment under Article 143(2) and in case of
cession of territory by amending Article 2(a) of the Constitution by taking recourse to
Article 142.
39. Had the Delhi Treaty involved a mere determination of the boundary between this
country and our friendly neighbour India, it could be implemented by a simple
enactment under Article 143(2) of the Constitution. In view, however, of our conclusion
that it involves cession of territory by Bangladesh, we are clearly of the opinion that in
order to implement this treaty, prior to ratification thereof it will be necessary to take
recourse to Article 142 with a view to amending Article 2(a) which defines the territory
of the People's Republic of Bangladesh.
40. This appeal is, however, liable to be and is dismissed in view of our finding that the
application under Article 102(2)(a)(ii) of the Constitution, out of which it has arisen,
was premature. There will be no order as to costs.
Before parting with the case we would like to place on record our appreciation of the
able assistance rendered to us by Counsel on both sides.
© Manupatra Information Solutions Pvt. Ltd.

28-04-2024 (Page 14 of 14) www.manupatra.com EWU Library