Gajendragadkar, C. J. - (1.) The writ petition from which this appeal arises was filed by the six appellants who reside within the limits of Thana Jalpaiguri in the district of Jalpaiguri. To their petition, they had impleaded as opponents the four respondents, the Union of India, the Secretary of External Affairs, Government of India, the State of West Bengal, and the Collector of Jalpaiguri. The substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of Berubari Union No. 12 and the village of Chilahati to Pakistan and they urged that the said attempted transfer was illegal. That is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer. Appellants 1 and 2 are the original inhabitants of villages Senpara and Deuniapara respectively which are within the limits of Berubari Union No. 12. They own ancestral homes and cultivated lands in the said villages and they live in the homesteads. Appellants Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri; but when Thana Boda was transferred to Pakistan as a result of the partition in 1947, they came over to the villages of Senpara and Gouranga bazar respectively within the limits of Berubari Union No. 12; since then, they have acquired lands there and built their homesteads in which they live. Appellants Nos. 5 and 6 are the inhabitants of village Chilahati, and according to them, this village is situated in Thana Jalpaiguri. In this village, these two appellants have their ancestral homes and cultivated lands.
(2.) It is a matter of common knowledge that on September 10, 1956, an agreement was reached between the Prime Ministers of India, and Pakistan with a view to settle some of the disputes and problems pending between the two countries. This agreement was set out in the note jointly recorded by the Commonwealth Secretary, Ministry of External Affairs, Government of India, and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth Relations, Government of Pakistan. After this agreement was entered into, the President of India referred three questions to this Court for consideration and report thereon, under Art. 143 (1) of the Constitution, because he took the view that the said questions had arisen and were of such nature and of such importance that it was expedient that the opinion of the Supreme Court of India should be obtained thereon. (Spl. Ref. No. 1 of 1959, In re:Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250 at pp 256, 295-96 ). These three questions were thus formulated:- "(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union (2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative (3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the Agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or in the alternative - On the above Reference, this Court endered the following answers:- Q. (1). Yes. Q. (2) (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent ; (b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary; (c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case, Parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the Agreement. Q. (3) Same as answers (a), (b) and (c) to Question 2.
(3.) As a result of the opinion thus rendered, Parliament passed the Constitution (Ninth Amendment) Act, 1960 which came into operation on December 28, 1960. Under this amendment, " appointed day" means such date as the Central Government may, by notification in the Official Gazette, appoint as the date for the transfer of territories to Pakistan in pursuance of the 'Indo-Pakistan Agreements' which means the Agreements dated the 10th September, 1958, the 23rd October, 1959, and the 11th January, 1960 entered into between the Governments of India and Pakistan. The relevant extracts from the said Agreements have been set out in the Second Schedule to the Ninth Amendment Act. The material portion of the said Schedule reads as follows:- "(3) Berubari Union No. 12. This will be so divided as to give half the area of 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 at present with Indian territory and will remain with India. The Cooch Behar enclaves lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan." The appellants alleged that it had come to their knowledge that about a month before the date of their petition, officers of the two Governments had gone to the locality to make demarcation by holding a survey and that the respondents intended to effect a partition of Berubari Union No. 12 with a view to transfer the southern part of the said Union to Pakistan. They had also come to know that a similar attempt to transfer village Chilahati was being made. The appellants also alleged that the language of the Amendment Act in question in so far as it relates to Berubari Union No. 12 is involved and confused and is incapable of implementation. In the alternative, it is urged that if the division of Berubari Union No. 12 is made as directed by the said amendment, no portion of Berubari Union No. 12 would fall to the South of the horizontal line starting from the north--east corner of Debiganj Thana, and so no portion of the said Union can be transferred to Pakistan. In regard to the village to Chilahati, the appellants' case was that the said village was not covered either by the Indo-Pakistan Agreements or by the Ninth Amendment Act. According to them, this village was a part of West Bengal and it was not competent to the respondents to transfer it to Pakistan without adopting the course indicated in that behalf by the opinion of this Court on the earlier Reference. That is how the appellants claimed the issue of a writ of or in the nature of Mandamus commanding the respondents to forbear from proceeding any further with the survey and demarcation of the area of Berubari Union No. 12 and Chilahati and from giving effect to their intentions to transfer a part of Berubari Union No. 12, and Chilahati to Pakistan. That is the substance of the petition filed by the appellants before the Calcutta High Court on December 4, 1963.;