KAZI MUKHLESUR RAHMAN VS.

BANGLADESH AND ANOTHER

Kazi Mukhlesur Rahman (Appellant)

Vs.

Bangladesh and another (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICE

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).

JUDGEMENT

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 :—

“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 ANE RELATED MATTERS.

“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 Consti-
tution 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 Aus-
tralian 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 res-
pondents 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 Su-
preme 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 po-
ssession 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.

Ed.

Source : 26 DLR (AD) 44