Kazi Mukhlesur Rahman Vs. Bangladesh and another

Kazi Mukhlesur Rahman (Appellant)


Bangladesh and another (Respondents)


Supreme Court

Appellate Division



Sayem CJ 

AB Mahmud Husain J 

Abdullah Jabir J

Ahsanuddin Chowdhury J

Judgment dated : September 3, 1974.

Cases Involved To:

Banarasi Prashad vs. Kashi Krishna Narain, IR 28 IA 11; Radha Krishna Das Vs Rai Krishna Chand. LR 28 IA 182, Radhar Krish­na Ayyar Vs. Swaminatha Ayyar, LR 48 LA 31; Member, Board of Revenue Vs Akhtar Khan, PLD 1968 SC 270; Shasi Bhusan Vs Asgar Ali, 20 DLR (SC) 217; McCabe Vs. Atchison 235 U S. 151; 59 L. ed. 169; Mas­sachusetts Vs. Mellon; Fronthingham Vs Me­llon, 262 U.S. 447= 67 L. ed. 1078 and Joint Anti. Fascist Com V. McGrath, 31 U.S. 132s 95 L. ed. 817; Charanjit Lai V Union of India, AIR 1951 SC 41; Calcutta Gas Co. Prop.) Ltd. V. State of W Bengal, AIR 1962 SC 1044; Maganbhai Iswarbhai Patel Vs Union of India, AlE 1969 SC, 789 , Anderson V. Commonwealth, 47 CLR 50; Mia Fazal Din Vs. Lahore Improvement Trust, 21 DLR (SC) 225 ; Blackburn Vs Attorney-General, (1971) I WLR 1037; Walker Vs. Baird, 1892) AC 491 PC; Johnstone Vs. Pedler, (1921) 2 AC 262; Nissan Vs. Attorney-Gene­ral (1970) AC 179; Canada Vs. Attorney-General, AIR 1937 PG 82.

Lawyers Involved:

Ahmad Sobhan, Senior Advocate with Abdul Malek, Md. Amar Ali, A.Z.M. Khalilullah Md. Fazlul Karim, Md. Ruhul Amin, Advocates, instructed by S. M Huq, Advocate-on-Record—For the Appellant.

Syed Ishtiaq Ahmad, Additional Attorney-General with K.Z Alam, Dy, Attorney-General Ismailuddin Sarker, Mahmudul Islam, A W. Bhuiyan, Asstt. Attorney General, instructed by A. Rab, I. Advocate-on-Record—For the Respondents.

Civil Appeal No 23 of 1974.

(From the judgment and order of the High Court Division dited20-5-74 passed in Writ Petition No, 559 of 1974).


                 Sayem CJ.- 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 Minister 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 :—


 “The Government of the People’s Republic of Bangladesh and the Government of the Republic of India,

“Bearing in mind the friendly relation existing between the two countries,

“Desiring to define more accurately a 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 south Berubari Union No. 12 and the adjacent enclaves, measuring an area of 2.64 square miles approximately, and exchange Bangladesh will retain the Dhagram and Angarpota enclaves. India will lease in perpetuity to Bangladesh area of 178 meters X 85 metres near ‘Tin Bigha’ to connect Dahagram with Panbari Mouza (P.S. Patgram) of Bangla

* *          * *            * * *

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 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 he 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 V Kashi Krishna Narain, (L R. 28 Indian Appeals 11) Radha Krishan Das v. Rai Krishan Chand (L R. 28 Indian Appeals 182) and Radha krishna Ayyar V. Swaminatha Ayyar (L R. 48 Indian Appeals 31) as well as Member Board of Revenue V Akhtar Khan (P.L.D. 1968 S C 270) and Sashi Bhusan V. Asghar Ali [20 D.L.R (S.C.) 217.].

5. The three aforementioned Privy Council cases related to certificate under rule 3 of Order 15 of the Code of Civil Procedure. It will suffice to refer to the case of Radhakrishna Ayyar (L R. 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 subject-matter and the nature or the question involved, the case ful­fils the requirements of ss 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 s. 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 V Akhtar Khan and Sashi Bhusan V 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 shat 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 Contribution, 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 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 detective 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 V. Atchison (235 U. S.151:59 L. ed 169) Massachusetts V. Mellon; Fronthingham V. Mellon (262 US 447; 67 L. ed 1078) and Joint Anti Fascist Com V McGrath (31 U.S. 123: 95 L. ed. 817). The Indian decisions are Charanjit Lai V. Union of India (AIR.  1951 S C 41), Calcutta Gas Co, (Prop) Ltd.; V. State of West Bengal (AIR 1962 SC 1044) and Maganbhai Ishwarbhai Patel V. Union of India (AIR 1969 SC 783. The lone decision of the Australian jurisdiction is Anderson V. The Commonwealth (47 C.L. R 50).

11. McCabe V. 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 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 some one 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.”

12. In Massachusetts V. 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-payer 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 realised from other sources—is shared with millions of others; is comparatively minute and determinable; 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 V. McGrath rose 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 tax-payer of the Federal Government is considered to be; and further that a litigant must show more than that “he suffers in some in­finite 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 institutional standards of justifiability. 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.

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 V. The Commonwealth (47 C L R 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 there do 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.

15. 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 of territory. The only decision cited by respondents that approximates the instant case and which remains to be considered is Maganbhai Ishwarbhai Patel V Union of India (A.I.R. 1969 S C 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 that 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 the 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  9(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:-

“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 that of Madhu Limaye.”

16. On the question of locus standi the appellant contended before us that since the remedies available under Article 102(2) of our Constitu­tion are discretionary, the 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 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 that he 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 the respondents objection as to the appellant’s locus standi to move the High Court Division our anxious consideration. It appears to us that the 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 that 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 this as well as of the exceptional and extraordinary constitutional issue raised in this case involving consideration of an international agreement between this country and the friendly Republic of India, we decided to bear the ap­pellant. In the recent case of Blackburn V. At­torney. General (1971) I 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 bad 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 for ever”. 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 in of a 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 M.R. 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 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, ro 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 my one who owes allegiance to the Crown.” This principle was propounded by Lord Herscheil in Walker V Baird (1892) A C 491 P.C and followed by the House of Lords in John-stone V Pedlar (1921) 2 A.C 262. This principle as again recently been reiterated by Lord Reid in Nissan V. Attorney-General (1970) A.C.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 raising a 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 V. Attorney-General of Ontario (A.I.R. 1937 P C 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 sates; and fur­ther that the question is not ‘how is the obliga­tion formed, that is the function of the executive; but how 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 respondent’s contention in support of the fourth objection appears, however, to have substance. We have quoted above the last  article in the Delhi Treaty which says that it is subject to ratifica­tion and chat 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 she 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 Continuation 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 2 and the adjacent enclaves.

25. 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 Radcliff 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.

“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 Pachagar 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 Behr 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.”

26. 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 manifest 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 in to 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 AIR 960 S.C. 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 bet 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 the aforesaid Constitutional amendment in India, incorporating the details of Noon-Nehru Pact. The southern half of south Berubari lion No. 12, together with the enclaves, thus formed an inseparable and integral part of the territory of Bangladesh in view of Article 2 (a) 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 26th   day of March, 1971 constituted East Pakistan”. Agreeing to their retention by India 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 V Venezuela (U. N Rep, Vol. I, page 223), Belgium V. Netherlands reported in (1959) I. C. J Reports page 209 and Cambodia V. Thailand reported in (1962) I.C.J. page 6.

27. In Columbia V. Venezuela (U. N 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 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) I.C.J 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 inconsequence 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) I.C.J. 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 Vibear 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 on 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-vis Noon-Nehru Pact.

31. 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-

“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 e g., 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, 1022 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 age 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 1891 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 German 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 Striates Settlements and Jchore Territorial Waters (Agreement) Act, 1928; the Dindings Agreement (Approval) Act, 1934; an the Anglo-Venezuelan (Island of Patos Act, 1942, approving a treaty of scession by Great Britain.

There is, every reason to expect th these recent precedents will be follows 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”.

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 that approval of Parliament given by a Statute”

34 It will be evident from the above (tracts from works of authors of repute on International law that even in a country like England which is not governed under a writ-Constitution, the modern trend is to obtain the assent of Parliament in case of cession territory.

35. Ours is a written Constitution. We ye already seen that the head of the Executive namely, the Prime Minister cannot laterally determine the boundaries of Bangladesh which has to be done by a law of  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 Bangladesh is on the face of it such a “manifest and notorious” restriction on his treaty-making power that any such treaty entered in to 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 subject.

36. In his International Law, Second Edition, while dealing with countries having written Constitution, Professor D. P. O. Con-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 that 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. I, 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 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 (A.I.R 1969 S.C. 783) earlier noticed in another context.

38. 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 single 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.


Source : 26 DLR (AD) 44