Maganbhai ishwarbhai patel v. union of india - case study
Kajal
(Querist) 23 March 2020
This query is : Resolved
May I get the Summary or Case Study document on Maganbhai Ishwarbhai Patel v. Union of India? It's very urgent. Any help would be obliged.
Raj Kumar Makkad
(Expert) 23 March 2020
The petitioners attempt to establish that this territory is a part of India and has always been so from the establishment of the two dominions, that India has exercised effective administrative control over it and that. giving up, a claim to it involves a cession of Indian territory which can only be effected by a constitutional amendment. As to the details of the steps which, in the, petitioners' view establish these facts, we shall come later. This in very brief is the gist of the petitioners' case. The reply on behalf of the government of India is equally brief. It is that no, cession of territory is involved, since the boundary was always uncertain owing to the shifting nature of the sea and sands and that the effective administrative control amounted to no more than establishing a police outpost with a personnel of 171 persons for watch and ward and that too after the exchange of Diplomat Notes began and that the dispute concerns the settlement of boundary which was uncertain. It is thus contended that the true areas of Pakistan and India have now been demarcated without cession of what may be called undisputed Indian territory. According to the Government of India the Award itself is the operative treaty and after demarcation of the boundary it will only be necessary to exchange letters recognising the established border. The case lies within this narrow compass.
The question is one of authority. Who in the State can be said to possess plenum dominion depends upon the Constitution and the nature of the adjustment. As to the necessity of it, the Courts must assume it as a matter of law. It is scarcely to be thought that the validity of the action can ever depend upon the judgment of a court. Therefore all argument that the action of Government to go to arbitration was not proper must cease. Unlike the United States of America where the Constitution is defined in ex- press terms, we-in our Country can only go by inferences from our Constitution, the circumstances and the precedents. The precedents of this Court are clear only on one point, namely, that no cession of Indian territory can take place without a constitutional amendment. Must a boundary dispute and its settlement by an arbitral tribunal be put on the same footing. An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing two neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary. A settlement of a boundary dispute cannot, therefore, be held to be a cession of territory. It contemplates a line of demarcation on the surface of the earth. It only seeks to reproduce a line, a statutable boundary, and it is so fixed. The case is one in which each contending state ex facie is uncertain of its own rights and therefore consents to the appointment of an I arbitral machinery. Such a case is plainly distinguishable from a case of cession of territory known to be home territory. The argument that if power to settle boundaries be conceded to the Executive, it might cede some vital part of India is to take an extreme view of things. The same may even be said of Parliament itself but it is hardly to be imagined 28 4 that such gross abuse of power is ever likely. Ordinarily an adjustment of a boundary which international Law regards as valid between two Nations, should be recognised by the Courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been the custom of Nations whose constitutions are not sufficiently elaborate on this subject.
(iv)Any other matter which requires consideration for effective demarcation work.
If the Representatives of the two Governments do not agree upon any of the above matters either Government shall immediately report to the Tribunal the matters in difference for the decision of the Tribunal.
5.
6.The first task of the demarcation team shall be to ascertain if any control points exist and are available, These control points should be supplemented, wherever necessary, in order to determine the pillar positions on the ground in accordance with the alignment of the boundary. If control points do not exist or are not available, a fresh series of triangulation or traverse will be carried out and control points determined and the pillar position-, located with the help of these points.
I have set out the terms of the agreement and the disputes raised by the two States in some detail. A review of the terms of the agreement, the unanimous introductory part of the award and the terms of the agreement relating to the implementation of the award and of the final award, make it abundantly clear that the dispute related to the boundary between the two States : it was referred as a boundary dispute, the respective claims urged were about the location of the boundary line, and the operative part of the award declared the alignment of the boundary, which has under the terms of the agreement relating to the procedure for demarcation to be filed by pillars on the alignment. Settlement of dispute which relates to the alignment of an undefined boundary between two States involves no cession of territory by either State. In the advice rendered to the President in a reference made to this Court under Art. 143 in In Re : The Berubari Uninion and Exchange of Enclaves(1) this Court was called upon to determine the true nature of the agreement between the Prime Ministers of India and Pakistan-each Prime Minister acting on behalf of his Government September 10, 1958, for a division of the Berubari Union in the State of West Bengal and exchange of certain enclaves- and whether the agreement may be implemented otherwise than by a constitutional amendment. This Court held that the agreement between the two Prime Ministers did not seek to interpret the Radcliffe Award or to determine the boundary between the two States. It Was agreed by the two Prime Ministers that a part of the Berubari Union which was allotted to India under that Award and was in occupation of India was to be ceded to Pakistan, and enclaves within Pakistan but in occupation of India de lure were to be exchanged for similar enclaves of Pakistan within Indian territory. This Court advised the President that the appellant could be implemented under the authority of a constitutional amendment only. The Parliament then enacted the Constitution. (Ninth Amendment) Act, 1960, assuming power to implement the agreement and the (1) [1960] 3 S.C.R. 250.
Rajendra K Goyal
(Expert) 24 March 2020
You can visit following link for the decision:
https://www.lawyerservices.in/Maganbhai-Ishwarbhai-Patel-Versus-Union-of-India-and-Another-1969-01-09
or at:
https://indiankanoon.org/doc/1310955/
May also try at following link:
https://www.casemine.com/judgement/in/5609ab63e4b014971140c53a#86
T. Kalaiselvan, Advocate
(Expert) 24 March 2020
I endorse the views of the experts in this regard, you have been properly informed on your query.
Rajendra K Goyal
(Expert) 25 March 2020
Expert T. Kalaiselvan ji, Thanks for endorsing the views.
Raj Kumar Makkad
(Expert) 26 March 2020
Was there ocassion to express views? Where are those? Invisible...merely giving the link of judgment is neither the view of any individual expert nor it requires any endorsement or further thanks.
It is not good to crush a query or become so cheap to unnecessarily increase a thread so as to get maximum marks. A Code of Conduct is the essential need for the experts.
