This volume shoilld be quotedas:
"1.C.J.Plgadings, Case concerninRight o/ Passage over
I.ird.ia>erritory (Portugal v. India),l. II."
Le prèsent volume doit êtrecité comme suit.:
tC. 1J. MLw~oires,Aflxire dudroitde passage szsr
tewifoivig$dz'(Portugal c.Ifide)vol. II.1)
Saiesmumber 248 1
No de vente: INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
CASE CONCERNING
RIGHT OF PASSAGE OVER
INDIAN TERRITORY
(PORTUGAL v.INDIA)
(General List32-Judgmentof26November1957and
12Aprii rg60)
VOLUMEJI
Counter-Mernorial.-Reply COUR INTERNATIONALE DE JUSTICE
AFFAIRE DU
DROIT DE PASSAGE
SUR T.ERRIT"IRE INDIEN
(PORTUGAL c. INDE)
(R81général 32 - Arrêtsdu 2novembr1957et du
12avri1960)
VOLUMEII
Contre-mémoi-eRéplique CONTENTS '- TABLE DES MATIÈRES "
,PART 1.-APPLICATION 1.NSTITUTING PROCEEDINGS
AND PLEADINGS
PREMIÈRE PARTIE. - REQUETE INTRODUCTIVE
D'INSTANCE ET MÉMOIRES
SECTIOZL' B.--FLEADISGS (conli~rrred)
SECTION B. - MGMOIRES (suite)
4.- Counter-Mernoriao lf the GovernmentofIndia (II58):
Page
INTRODUCTION ..................... 5-8
PART 1: THE GEOGRAPIIICAL AND GENERAL FACTS ......
Geography ......................
Customs frontiers between Poi:tuguese possessions in India
and British Indiaiindependent India ...........
Travel between Portuguese possessions and British India .
Conclusions .....................
PARTII: THE HISTORIC:ALFACTS .............
Introduction ....................
The Maratha Period (1774-rS18) ............
The British Period(1818-194 .7...........
1. Transit of Goods (1818-1879) ..........
II. Passage and :Entsf of Soldiers and Poli(1818-1879)
III. The Treaty of Commerce and Extradition, 1879-1892
IV. 'Transit of Goods1892-194 ...........
V. Passage ancl Entry of Soldiers and Police1892-1947
VI. Import of Arms, 18gz-i:g47...........
VII. ConcIusion ..................
The Yost-Independelice Period (1947- )........
Conclusioiis .....................
lThe page references originally appearing in the pleadings and oral arguments
have been aitered to correspond with the paofthe present edition.
Where the referencesto another volumofthe present editithe volume is
indicated by a figurht:avyRoman type.
a Les renvois figurant dans les mémoires et plaidoiries ont étémodifi&spour tenir
coLorsqu'il s'agit d'un rànun autre volume de la présente édition un chiffre
romain gras indique le numéro de ce volume. Page
PART III: THE ANALYSE OF THE PORTUGUESE CLAIM ..... 100-109
PARTIV: THE PRESUMPTION AGAINST RESTRICTION UPON THE
EXERCISE OF TERRITORIA LOVEREIGNTY ......... 110-122
PARTV: THE ABSENCE OF ANY RESTRICTIONS ON SOVEREIGNTY
IN GENERAL LAW WITH REGARD 'IO RIGHTS OF PASSAGE BY
ROAD ........................ 123-1314
PARTVI: THE ABSENCE OF ANY OBLIGATION WITH REGARD TO
RIGHTS OF PASSAGE DERIVING FROM SPECIAL TREATIËS OR
SO-CALLED LOCAL CUSTOM ...............
135-148
Maratha Period .................... 136-140
Treaty ...................... 136-139
Local Custom ................... 139-140
The Displacement of the Maratha Rulers by the British and
the assumption by Portugal of the sovereignty of the en-
claves ...................... 141-142
British and post-British Periods ............ 142-148
Treaty ...................... 143-146
Local Custom ................... 146-148
PARTVII: THE IMPACT ON THE PASSAGE CLAIMED OF THE
EVENTS WHICH HAVE TAKEN PLACE IN DADRA AND NAGAR
AVELI ....................... 149-153
MAP1 Map of Part of State of Bombay ... .[Not reproduced]
MAPTI Map of Daman,Dadraand Nagar Aveliand surround-
ing Indian Districts........ [See 9ocketilasideback cover]
Annexes dothe Counter-Mernorial ofthe Goverfimentof India l:
Annex D :
Page
I. Letters containing report and propoçals for thereorganization
of the establishment on the Daman frontier between the
Secretary to Government, the Collectorand the Assistant
Collector of Salt Revenue, Bombay Presidency, 15 Decern-
ber 1875 to 14May 1876 ...............
158
2. Notifications for fixing routes for the passing of goods into or
out of the Portuguese possessions; 26 September 1892;
8 July 1895; 15 August 1900; IISeptember 1911 .... 168
l Seefirsfootnoton p.8. IX
Page
Notification prohibiting issue of passports by magistrates and
other authorities fotravelin India. Government of [ndia,
dated 24 Novernber 1856 ...............
Acforeignersfrom residing or sojourning in British India with-
out the consent of the British Government.......
The Foreigners Act No. 3 of 1864 to givethe Goverriment
certain powers with respect to Foreigne........
Notifications, pursuant to the Foreigners Act 1864, dated
8 August 1914 ,os. 577,578 .............
Foreigners Ordinance 1914dated 20 August 1914 . efence of
India Passport Rules 1917 '..............
Indian Passport Act,1920 , o. 34 of1920 ,nd Indian Pass-
port Rules,1921 , ade thereunder. ..........
9. Notification No. 77 G,dated 16 February 1526, amending
Rules 3 and 5 cithe Indian Passport Rules,1921 above .
IO. Notifications Nos. 72 G and287 G dated 22 Janual and
7May 1930further arnending Rule 5of the Indian Passport
Rules, 1921above ..................
II. NotificationNo. 5r4-G dated 16 September 1935 further
amending Rules 3 and 5 of the Indian Passport Rules1921
above .......................
Letter from the Eritish Consul in the Portuguese possessions
inIndia to the TJnder-Secretary to the Governrnent of India
enclosing a letter from the Portuguese Chief of Cabinet,
Nova Goa, and the Under-Secretary to the Governrnent of
India's reply thereto, concerning the necessity for Portu-
guese Europeans to have visas when entering British India.
5September to 2 December, 1940. ...........
Notifications Nos89/4 1ated 22July 1944 estricting entry
andexit into Pcirtuguese Iiidia from British India, pussuant
to the Defence ofIndiaRules, and Foreigners Act, 1940 .
Notifications Nos. 89/41D and E dated21June 1945,restrict-
ing entry and exit into Portuguese India from British India,
pursuant to the Defence of India Rules.........
Notifications Nos89/41 dated 22 November 1945 canc:elling
above Notifications [No. 1..............
Letter from the British Consul in the Portuguese possessions
in India to the Portuguese Chief of Cabinet,Nova Goa,
relating to restrictions on entof European Portiiguese
subjects into British India, 27 Mar1945 .......
Correspondencebi:tween the British Embaçsy, Lisbon, and the
ForeignOfice, London, concerning the abolition of visin
the case of British and Portuguese nationals entering the
respective territories, 4 July 192ItFebruary 1927. ..
Registration of Foreigners Act, No. XVI o1939. .....
Registration of Foreigners Rules, 1939; Registration of
Foreigners (Exemption) Order,1939 .......... Annex E :
Maratha Period (1774-1818)
Page
1. Extracts from Reports and Studies of British Officersand
others :
(1) "Analysis" by J. H. Harrington, 1817. . . . . . . . . 216
(2) Report by Mr. T. W.Maddock, 1841 , . , . . . . . . 224
(3) "List of Saranjams" by A. T. Etheridge, r9oo . . . . . 236
(4) "Indian Land Problem and Legislation" bp G. D. Patel,
1954 ....................... 245
2. Part 1. Treaty of 1739 . . . . . . . . . . . . . . . . . 249
(1)First Document. 25 April 1739 . . . . . . . . . . . . 249
(2)Second Document. 27 April 1739 . . . . . . . . . . . 249
(3)Third Document, 27 April 1739 . . . . . . . . . . . 250
Part II. Treaty of 1740. . . . , . , . . . . . . . . . . 2.51
3. First Draft of the proposed Treaty, 1775 . . . . . . . . . 253
4. LSakharam.m t21 GJanuary 1777. ..d .C..t.in.G. . . . . .oa t. . . 256
5. Second Draft of the proposed Treaty. 21 October 1777 . . . 257
6. Translation of Peshwa's letter to the Governor of Goa.
23 December 1779. . . . . . . . . . . . . . . . . . . 258
7. Letter £rom the Viceroy of Goa, De Sousa, io the Portuguese
Secretary of State. IJanuary 1781 . . . . . . . . . . . 259
8. Reply from Portuguese Secretary of State to De Sousa,
Viceroy of Goa. 27 February 1782 . . . . . , . . . . . . 260
g. Proposed Treaty with Angria: 1778-1782 . . . . , . . , . 261
IO. ~ransiations of Marathi portion inphotostat copy ofAnnex 19
of Memorial. . . . . . . . . . . . . . . . . . . . . . 264
II. Letter £rom the Portuguese Secretary at Goa to Vithal Rao
Goraksh, Portuguese Envoy to the Marathas. 7 July 1798 . . 264
12. dated 13 June 1817 Eas. I. . . . . . . . . .e Pes.wa. , . , . . 266
British Period(1818-1947)
13. Correspondence between the Governor General of Goa, J. F.
Pestana, and Sir GeorgeArthur, Governor of Bombay andthe
British authorities relating to the British refusal to exempt
from duty articles exported from Daman for consumption
in Nagar Aveli; 25September 1844 to 19 March 1845 . . . . 279
(25 Septemberh1844)er. . . . .ao.G. . . . . . .er.o. . . . . . 279
(23tXovernbere1844)no. . .er. .o. . . . . . . .ve. .r.o. . . .y 280
Letter to Secretary to Government of Bombay from the Collector
of ContinentalCustoms and Excise (31December 1844) . . . . . 280 XI
Page
Letter from Revenue Commissioner to Secretary to Government of
Bombay (31 January1848) ................. 281
Letter from Territorial DepartmeRevenue, Government of Bom-
bay, to the Goverrior GenerciGoa (1 March 1845)....... 282
Letter from the Governor Genei-al of Goa to the Governor of Bombay
(12February 1845) .....................
283
Letter from Government of Bo~nbay to the Governor General of Goa
(1gMarchr845) ...................... 283
Despatch from thi: Government of India to the Secretary of
State for India, dated 16 September 1870 and further des-
patch from the Under-Secretary of State for India to the
Under-Secretary of State for Foreign Affairs, dated18 Decem-
ber 1872,enclosing memorandum relating to theproposed ter-
mination of Portuguese firman privileges at Surat .....
Sea Customs Act, 1878, No. VIII, and Notification No. 171
thereunder of the prohibition of the importation of country
liquor produced in Portuguese territory into any port of the
Presidency of Bombay, dateil 12 January 1892 ......
Notification No. 127- 4ursuant to the Sea Custorns Act,1875,
prohibiting the talting by sea or land of Mhowra flowers from
British India to Portuguese Indian possessionç, dated
g January 1908 ............ .-.......
Letter from the Governor General of Goa, to the Goverilor of
Bombay, dated 21 December 1909, proposing fresh negotia-
tionç forthe distillation and sale of country liquor and letter of
the Acting Chief Secretary to the Government of Bombay to
the Government of India cornmenting thereon, 8 April 1910
Notification No. 117-47 pursuant to the Sea CustomsAct 1878
prohibiting the taking of dates from British lndia into the
pargana of Nagar Aveli, dated 6 January 1912. ......
Xotification No. 7668-212, pursuant to the Sea Customs Act
1878, prohibiting the taking of jagri from British India into the
parganaof Nagar AveIi, dated 12 October 1912 ......
Notification No. 9540-212, pursuant to the Sea Customs Act
1878, prohibiting the taking of molaçses from British India
into the pargana of Nagar Aveli, dated 4January 1913. , .
Letter from the Director Geileral ofthe Portuguese Colonial
Office to the Secretary, Reçerve and StatisticsDepartment,
India Office, subniitting Bases of Convention for free transit
between Daman and the enclaves of spirits and sali, dated
z December 1912 ...................
Further Bases of Convention on the same subj ect submitted
by the Portuguese in 1918 and reply of the Goverrior of
Bombay to the Governor General of Goa thereon, dated
6 December 1918 ...................
Notification No. 2145,pursuant to the SeaCustomsAct 1878,
prohibiting the bringing of saccharine by land into British
India from (inter ~zlia)Goa and Daman, dated 2 June 1924 .XII
Page
24. Letter from the Chief Secretary to the Government of Portu-
guese India to the Secretary to the Government of Bombay,
dated 2 December 1913 and the latter's reply thereto dated 22
January 1914 relating to passage of Portuguese unarmed
troops through British Indian territory..........
Letter from the Portuguese Consul-General, Bombay, to the
Secretary to the Government of Bombay requesting permis-
sion for the transit of eleven soldiers through British territory
and the British authorities' reply thereto, 13 to 15 January
1915.. .......................
Letter from the PortugueseActing Chancellor, Bombay, to the
Secretary to the Government of Bombay requesting permis-
sion for the transit of one soldier through British territoryand
the British authorities' reply thereto, 22 to 26 March 1915 .
Letter from the Portuguese Consul-General, Bombay, to the
Secretary to the Government of Bombay requesting permis-
sion for the transit o27 soldiers through British territory and
the British authorities'reply thereto, 5to 8 January 1915. .
Letter from the Portuguese Consul-General, Bombay, to the
Secretary to the Government of Bombay requesting permis-
sion for the transit of one sergeant and two soldiers through
British territory and the British authorities' reply thereto,
IO to 12 February 1915 ................
Letter from the Portuguese Acting Chancellor, Bombay, to the
Secretary to' the Government of Bombay requesting per-
mission for the transit of19 soldiers through British territory
and the British authorities' replythereto, 8 toIO March 1915
Letterfrom the Portuguese Acting Chancellor, Bombay, to the
Deputy Secretary to the Government of Bombay requesting
permission for the transit of 14ldiers through British territory
and the British authorities'repIy thereto, 29 to 30 March 1915
Letter from the Portuguese Consul-General, Bombay, to the
Deputy Secretary to the Government of Bombay requesting
permission for the transit o3 soldiers through British territory
and the British authorities' reply thereto, IO to 14 February
1917.. .......................
Letter from the Portuguese Consul-General, Bombay, to the
Deputy Secretary to the Government of Bombay requesting
permission for the transit of a captain and one soldier from
Bombay to Nagar Aveli and the British authorities' reply
thereto, 7 to IO August 1917 ..............
Letter from the Portuguese Consul-General, Bombay, to the
Chief Secretary to the Government of Bombay requesting
permission to move a detachment of armed men from Nagar
Avali to Daman and back and the British authorities' reply
thereto,28 to 30 January 1933 .............
Request of the Portuguese Consul-General, Bombay, to the
Officiating Chief Secretary to the Government of Bombay for XII1
Page
free transit for two soldiers accompanying a Portuguese
officia1carrying money between Daman and Nagar Aveli and
the British authorities' reply thereto, 29 t30 June 1933 . .
Request of Portuguese Vice-Consul, Bombay, to the Chief
Secretary to the Government of Bombay for free transit for
two soldiers accompanying :iPortugueçe officia1 carrying
money from Silvassa to Bombay and back and the British
authoritieç' reply thereto, 26 to 27 April 1934 ......
Request from the Portuguese Consul-General, Bombay, to the
Chief Secretary to the Governinent of Bombay for free transit
for two soldiers accompanying a Portugese officia1carrying
money to and from Silvassa through British territory and the
British authorities' reply thereto,15 to 25 March 1935 ...
Request from the I'ortuguese Consul-General, Bombay, to the
Chief Secretary to the Government of Bombay forfree transit
for two soldiers accompanying a Portuguese officia1carrying
money to and from Silvassa through British territory and the
British authorities' reply thereto, 16 t22 July 1935 - , , .
Telegram from the Portuguese Chief of Cabinet, Nova Goa, to
the Chief Secretary of the Government of Bombay requesting
free transit for an armed guard accompanying a Portugueçe
officia1carrying money from Silvassa to Bombay and the
British authorities' reply thereto23 to 30 May 2940 ....
Indian Arms Act of 1860, No. XXXI, preamble and section
17 ..........................
Goverilor of Bombay for fret: transit ofNov3 muskets and the
British authorities' reply thereto,II to 25 January 1939 . .
Request of the Portuguesc Governor-General. Nova Goa, to
the Governor of Bombay for free transit of 8 mu+ets, one
revolver and carti-idges and the British authorities' reply
thereto, aq hlarch to 4 April 1939 ............
Requeçt from the Portuguese Chief of Cabinet, Nova Goa, to
the Chief Secretary to the Govemment of Bombay for free
transit of 52,000 c;lrtridges andthe British authorities' reply
thereto, 17 to 27 ApriI1940 ...............
Correspondence between the Portuguese Consul-General,
Bombay, and the Bombay and Indian Governments relating
to the detention of two sporting guns belonging to a Portu-
guese officiaiI September to IDecember 1917 .......
Post-Independence Period (1947- )
Portuguese Order-in-Council No. 4,590,dated 26 December
1947 ,elating to regulations governing theentry of Portuguese
nationalç and foreigners into Portuguese India ......
Portuguese Order-in-Council No. 4,632, dated 25March -1948,
revising the above Portugurise Order-in-Council No. 4,590
(No. 44) ....................... Page
46. Letters exchanged between Indian Consul at Goa and Portu-
guese Chief of Cabinet on restrictions imposed on entry of
Indians into Portuguese possessions; 18 January 1949 to
I July 1952. Notes from the Ninistry of External Affairs,
New Delhi, to the Portuguese Legation, on the sarne subject,
16 August and 29 December 1952 ............ 360
Correspondence between the Consul for IndinGoa and the Chief
of Cabinet, Goa (18January 1949 to r J1952)........
360-364
in Indiar(16 Auguçt1952)n..................gation of Portugal 364
Letter from the Government of India to the Legatiof Portugal
inIndia(zgDecember 1952) ................. 365
47. Letter from the Consul for India in Portuguese possessions in
India to the Portuguese Chief of Cabinet, Goa, concerning
grant of travel facilities for India to Portuguese nationals,
29 March 1949 .................... 366
Reply to above letter from the Portuguese Chief of Cabinet,
48. Goa, tothe Consulfor India in Portuguese possessionsin India,
12April 1949 ..................... 367 '
49. Further letter on the same subject from the Consul General for
India in Portuguese possessions in India to the Portuguese
Chief of Cabinet, Goa, 17 January 1950. ......... 368
50. Note from the Consul General of lndia in the Portuguese
possessions in India to the Portu~uese Governor-General.Goa,
concerning infringements of tfie Indian Pasçport Act by
Portu~uese Europeans travellin~ without visas between
~ortuiuese territoFies through 1ndh territory,IOctober 1953 369
Note from the Consul General of India in the Portuguese
51. possessions in India to the Portuguese Governor-General,
Goa, on the same subject, 5 December 1953 ........
370
52. Reply to above Notes (Nos. 50 and 51) from the Portuguese
Governor-GeneraI, Goa, to the Consul General of India in the
Portuguese possessions in India, 21 December 1953. .... 370
Note from the Ministry of External Affairs, New Delhi, to the
53. Legation of Portugal in India relating to Indian requirement
of visas forl1PortugueseEuropean officialsin transit through
Indian territory, 23 December 1953 [See Annex 38 to Memo-
rial,Vol.1, $p. 72-73] .................
54. Reply to the above Note from the Legation of Portugal
in India to the Ministry of External Affairs, New Delhi,
' II February 1954 [SeeAnnex 40 tuMernorial,Vol.1, #p.77-79]
55. Notification datedIO April 'Tyj4,pursuant to the Indian Pass-
port Act, 1920 ,mending the Indian Passport Rules, 1950 . 371
56, Note from the Ministry of External Affairs, New Delhi, to the
Legation of Portugal,referring to the violation of Indian pass-
port regdations by Portuguese officials, 23 September 1954
[See Annex C. No. 86 to Preliminury Objections, Vol. 1,
#p. 559-5601 Page
Note from the Legation of Portugal in India to the Ministry of
External Affairs, New Delhi, stating Portuguese requirernent
in future of visas fctral1Indiaii nationals entering Portuguese
territories,31 July 19.54 ................ 372 .
CircuIar of the Goa Police Commissariat ordering departure
within 24 hours of al1Indian nationals not authorized to reside
in Portuguese territory, 7 Augusust 1954 .......... 373
Press Note released by the Ministry of External Affairs, New
Delhi, concerning E'ortuguese restrictions on the rnovement of
Indians in and out of Goa and the introduction of a permit
scheme by the Government of India, 4 August 1954. .... 373
Letters exchangedbetween the Chief Secretary to the Bombay
Government and
the Consul forPortugal at Bombay, regard-
ing transit of Portuguese armed forces .......... 375
Letter from Chief Secretary to the Government of Bombay to the
Consul for Portugalat Bombay (13April 1949) ........ 375-376
Letter from the ConsuforPortugal at Bombay to the Chief Secretary
to the Government of Bombay (27 September 1949)....... 376
Consul for Portugal at Bombay (6 Octobernm1949)o.......y to the376-377
Letter from the Consul for I'ortugal at Bombay to the Chief
Secretary to the Government of Bombay (13 December 1949).... 377
Lettcrfrom the Chief Secretary to the Government of Bombay to
the Consul for Portugal at Bombay (17 December 1949) .... 377-378
Letter from the Consul for I3ortugal at Bombay to the Chief
Secretary to the Government of Bombay (13 Narch 1950) ....
378
Lettcr from Chief Gecretary to the Government of Bombay to the
Consul for Portugal at Bombay (16,March 1950) ....... 378-379
Letter from the Oonsul for Portugal at Bombay to the Chief
Secretary to the Government of Bombay (26May rggo) ..... 379
Letter from the Chief Secretary to the Government of Bombay to
the Consul for Portugal at Bombay (1June 1950) ........
380
Letter from the Cliief Secretary to the Governmentof Bombay to
the Consul for Portugal at Bombay (20 September 1959)..... 381
Letter from the Consul for Portugal at Bombay to the Chief
Secretary to the Guvernment O€ Bombay (zMarch 1951)..... 382
Letter from the Cons'ul for Portugal at Bombay to the Chief
Secretary to the Government of Bombay (gMarch iggr) .... 382
Newspaper account of 1946 campaign for civil liberties in Goa,
dated 27 July 1946 .................. 383
Newsyaper account of the clnsing down of a Goan college by
the Portuguese Government, dated 14 December 1951 ... 385
Goan newspaper account of the liberation of Dadra and Nagar
Aveli, dated 25 July 1955 ............... 386
"Report of the New Administration on the conditions in Nagar
Aveli and Dadra before and after the liberation from Portu-
guese coloniaIism", published by a Goan body in London,
October 1957 [Not re$roduced]XVI CONTENTS - TABLE DES MATIÈRES
Page
65. Resolution of Gram Panchayat (Constituent Assembly) of
into Indian Union, 25 November 1954the..........for integration
388
66. Press statement issued by the Administrator of Dadra and
Nagar Aveliafter Portuguese Application to the International
Court of Justice,28 December 1955 ........... 391
67. .15aJanuaryap1956ccto protest against Portuguese Applicationn
demanding right of passage ...............
392
68. Letter from the President ofVarishtha Panchayat (Central
Assembly) ofDadra and Nâgar-Aveli to ShriM.C. Setalvad, at
the Hague, stating that any verdict of the International Court
of Justice will be irrelevant in relation to the people of the
enclaves ....................... 394
5.- Répliquedu Gouvernement de la Républiqup eortugaise (v~58) :
PARTIEII: EXPOSB DES FAITS
SectionI : Considérationsgénérales ............ 4II
SeclionII: La périodemahratte ............. 414
SeclionIII: La périodebritannique ............ 458
SectionIV: La période post-britannique ou de l'indépendance 505
PARTIE111: EXPOS$ DE DROIT
SectionI : Considérationsgénérales ............ 530
SectionII : La coutume générale ............. 534
SectionIII: droits internes................ la conformite des 543
Section IV: Principes généraux inhérents à l'ordre juridique
international................. 548
Section V : locale)....................nventions et coutuine
554
Section VI : L'influencedes événementsqui ont eu lieu à Dadri
et à Nagar-Aveli sur l'exercicdu droit de passage 560
PARTIE IV: CONCLUSIO N................ 577 CONTENTS - TAIKE DES MATIÈRES XVII
Annexes2 la ré+Ziqud au I;ouvernementdelaR.@ubliquePortugaise 1:
Page
I.Considérations sur la valeur :juridique de la dénomination
(saranjam iou (jagir »aitribulie dans certains textes mahrat-
tesB la concession territorialefaite aux Portugais ..... 580
2. Considérations sur le mot idurnala s utilisé dans certains
documeiits mahrattes à propos de la concession territoriale
. faite aux Portugais .................... 591
3. Traité de Raia - 27 avril 1739. .........-.. 593
4. rerTraité de Puneni - 18 septembre 1740 ........ 595
5.Assiette de la division des villages de la Pragana Naer et de
ceux de la Pragana Calana donnés en équivalence (1741) . .
598
6. Traité de l'échange desvillageslieDam50 et des us et coutumes
à observer (zbmeTraité de Punem, du 9 février 17/11) .... 601
7. Instqlctions données par leGouvernement portugais au Mar-
quis de Louriçal, le2 mai 1740, à l'occasion de son envoi en
Inde comme Vice-Roi .................. 605
8. Lettre des gouvernf:urs intbriinaires de l'État portugais de
l'Inde au Roi de Portugal, en date du 28 janvier 1743 ... 606
g. Instmctions données par le Gouvernement portugais à
D. Pedro Miguel de Almeida e Portugal, Marquis de Castelo-
Novo, le 2j mars 174.t)5 l'occasion de son envoien Inde comme
Vice-Roi ....................... 607
IO. Rapport du capitaine Caetano de Sousa Pereira, établi à la
demande du Vice-Roi, en date du 22 janvier 1743 ..... 608
II. Lettre de Ballagi Ragi Rao, Peshwa de Punern, à son général
Pilagi Zadav Rso, en date du 19 décembre 1746 ...... 609
12. Rapport du Vice-Rcii Marquis d'Alorna adressé au Secrétaire
d'État du Gouvernement portugais, en date du z février ,1747 610
13. Lettre du Vice-Roi Marquis de Tavora au Secrétaire d':État
du Gouvernement portugais, en date du IO janvier 1752 . . 611
14. Lettre duVice-Roi Marquis deTavora àTul.agiAngria Sarquel,
en date du S février 1752 ................ 612
15. Lettre du Vice-Roi D. Luis de Mascarenhas, Comte de Alva,
au Roi, en date du 18 février 1.756 .-.......... 613,
16. Lettre du Vice-Roi Comte de Ega, au Secrétaire d'État, en
date du ra janvier 1762 ................. 614
17. Lettre du Vice-Roi au Secrétaire d'État, en date du 31 janvier
1764 ......................... 616
18. Lettre du Sénat de Damao au Vice-Roi D. José Pedro da
Câmara,aussitôt après son arrivéeà Goa, en date du 3 octobre
1774 ......................... 617
rg. Lettre du Vice-Roi JI .osé Pedro da Câmara, au Gouverneur
de Darn5.0,en date du 3 jarlvior1775 .......... 618
1 Lespiècesenlangue portugaiseouniahratte ontétéreproduites etraduction
par leGouvernement portugais(voirattestationp. 861 .)XVIII CONTENTS - TABLE DES MATIÈRES
Page
20. Instructions donnéespar Ie Vice-Roi Il.José Pedro da Câmara
à Narana Sinai Dumd, envoyé permanent de I'Etat portugais
de l'Inde à la Cour de Punem, en janvier 1775 ....... 620
21. Lettre du Vice-Roi D. José Pedro da Câmara au Secrétaire
d'Etat, en date du 29 mars 1776 ..--......... 626
22. Lettre du Vice-Roi D. José Pedro da Câmara au Premier
Ministre, en date du 15 avril 1776 ............ 627
23. Lettre d'bpagi Kamacl-isndra et Ramachandra Rao Narana, .
envoyés de Ragoba, au Gouverneur de Damiïo, expédiéede
Surat le zavril 1776 .................. 628
24. Propositions pour un traité d'alliance faites aux Portugais, au
nom de Ragoba, par Sadassiva Ramachandra, son Ministre,
avant le 13 mai 1776 .................. 629
2j. Lettre de Narana Sinai Durno au Vice-Roi, en datedu 26 aofit
1776 ......................... 632
26. Lettre du Vice-Roi D. Frederico Guilherme de Sousa au
Gouverneur de Damiio, en date du II janvier 1780. , . . 634
27. Lettre du Vice-Roi I).Frederico Guilherme de Sousa au
Conseil deBombay, en date du rî juilIet1780 ....... 636
28. 1 - Lettre du Vice-Roi D. Frederico Guilherme de Sousa à
Narana Sinai Durno, en date du 23 août 1780 ....... 639
II - Lettre du même Vice-Roiau Gouverneur de Damgo, en
date du 31 aoîlt1783 .................. 639
zg. Lettre du Vice-Roi D. Frederico Guilherme de Sousa au Gou-
verneur de Damgo, en date du 20 décembre 1782 .....
640
30. Lettre de Domingos de Mascarenhas, chargé d'affaires du
Gouvernement de Damgo, à Narana Sinai DumCi,en date du
26 juin 1783 ...................... 641
31.Lettre du Secrétaire d'etat filartinho de Me10e Castro au Vice-
Roi, en date du S mars 1784 ............... 642
32. ((Rappel de l'accord de la Pragana Nagar-Aveli du revenu
du temps passé,qui a donné au gouvernement portilgais de la
place de Damgo du montant de- 12.000 Roupics iien date du
29 mai 1783 ......................
643
33. Lettre de Narana Sinai Dumd au Gouverneur de Damiio, en
date du 24 août 1787 .................. 645
34. Instructions expédiéesde DamZo à Narana Sinai Dumb, en
août 1759 ....................... 646
35. Annexe à la note du Gouverneur de Damgo, Antonio Lobo da
Gama, en date du 15 juin 1834 (1) ............ 648
36. Aiinese à la note du Gouverneur de Damgo, Antonio 1,obo da
Gama, en date du 15 juin 1834 (II)............ 649
37. Annexe à la note du Gouverneur de DamXo, Antbt~ioLobo da
Gama, en date du 15 juin 1834 (III) ........... 650
38. Annexe i.la note du Gouverneur de Damgo, Antonio Lobo da
Gama, en date du 15 juin 1834 (IV). ........... 651 XIX
Page
39. Anncxe à la note du Gouvernei~r de Damgo, Ant6nio Lobo da
Gama, en date du 15 juin 1834 (1;)............ 652
40. Lettre du Vice-Roi Francisco Antonio da Veiga Cabral au
Gouverrieur de DarnZo, en datc rlu IO janvier 1807 ..... 653
41, Lettre du Gouverneur de Darr~ao,Jorge Frederico Lecor-, au
Vice-Roi, en date du 21 mars 1809 ............
654
42. Lettre du Gouverni:ur de Damgo, José Maria de Castro e
AImeida, au Vice-Roi, eiidate du 28 novembre 1814 .... 655
43. Lettre du Gouvernc:ur de Dam20 au Vice-Koi, en datt: du
24 décembre 1814 ................... 657
44. Lettre du Vice-Roi au Gouverneur de Damao, en datt: du
9 décembre 1814 .................... 658
45. Lettre (lu Gouverneur de DamZo, Caetano Gomes da Costa, au
Vice-Roi, en ciatedu 3 mai 1806 ............. 659
46. Copie du uSanad idu Seigneur de Punem, adressé Sadassivs
Kama, le zGjuin 17i.14. ................. 660
47. Copie du (Sanad idu Seigneur dc Punem, adresséà Sadassiva
Kama, le 26 juin 1783 .................. 661
48. Lettre (le Ganepete Rao Ginagy, Subedar de Bassaim, à Balagy
Pante, eii date du8 novembre 1787 ............ 662
49. Ordre du Subedar tie Bassaim aux pcrccpteurs de Calaria et
Nner, en date du 14 décembre 1787 ............ 663
50. Lcttre du Commissariat du Sc1et de l'Abkari 5 Damitri, au
Gouverneur dc UarnZo, en dattidu 28 mai 1880 ...... 664
51. Lcttre du Commissaire du Sel et de l'Abkari ?I Damaci, au
Gouverneur de Darnao, en datt: du 2 juin 1880 ....... 66 j
52. Lettre de l'Administrateur de Nagar-Aveli au Gouverriciir de
Damao, en date du rerdécembre 1880. .......... 666
53. Lettre de l'Administrateur de Nagar-Aveli au Gouvcrneiir de
Damao, en date du 4 janvier 1581 ...........-
54. Lettre (lel'Administrateur de Nagar-Aveli au Gouverneur de
Damito, en date du 17 janvier1881, et décisionprise àsonsujet
55. Lcttre de l'Administrateur de Nagar-Aveli au Gouvernelir de
Damgo, en date du 2 mars 1881,et décisionprise à son sujet
56. au GouvcrncurmandeI)amZo, en date dugn16smarsP1882. d....mXo
57. Lettre cie l'Administration tlc la Commune de Nngar-Aveli au
Gouverneur de Daaiiio, cn dati: du20 avril 18S2 ......
58. Lettre du Comma~irlaiit ciesCompagnies de Police cic Dnmao
au Gouveriieur par intérim et Commandant hlilitairede
Darnao, en date du 21 avril 1882, et décision prise â son sujet
59. Lettre du Commnntlünt des Compagnies de I-loliccde Dam20
au Gouverneur par intérim et Commandant Militaire de
Uamao, en datc du zq avril 1852 .............
60. Lettre de l'Administrateur de la Commune de Nagar-Aveli au
Gouverneur dc Da~iao, en date du 6 septembre 1882 .... Page
61. Lettre de l'Administration de la Com~nunede Nagar-Aveli au
Gouverncur de Damgo, eIi date du 8 rriars 1884 ......
677
62. Feuille dc route établie par L'Administration de la Commune
de Nagar-Aveli le IOmars 1884 ............. 678
63. 1,ettrc de 1'Administratioii de la Commune de Nagar-Avcli au
Gouverneur dc Damao, en date du 13 avril 1884 ...... 679
64. Lettre de I'Administratiori de la Commune de Nagar-Aveli au
Gouverneur de Damgo, en date du 17 avril 1884 ...... 680
65. Rapport d'une mission présentéà l'Administration de la Com-
mune de Nagar-Aveli, en date du 16 avril1884 ....... 681
66. Lettre de l'Administrateur de la Commune de Nagar-Aveli au
Gouverncur en DamZo, en date du 4 juin 1884 ....... 682
67. Lettre de l'Administrateur dc la Commune de Nagar-Aveli au
Gouverneur de Damao, en date du 7 juin 1854 ....... 683
68. Lcttre de l'Administration de la Commune de Nagar-Aveli au
Gouverneur de Damao, en date du 3 août 1885 ...... 684
69. Ordre de Service no 138 de l'Administration Forestière de la
Pragana Nagar-hveli, en date du 26septembre 1885 .... 685
70. Communication du Garde Fiscal de la clivision Etli-Pati à l'Ad-
ministrateur des forêtsde Nagar-,4veli, en claiedu 28 septembre
1885 .........................
71. Lettre du Cornmanclrintdes Compagnies de Police de Damâo au
Gouverneur de Dnmao, en date du 18 septembre 1886, et
dbcision prise à son sujet ................
72. Lettre de l'Administrateur de la Commune de Nagar-Aveli au
prise à son sujetn....................ctobre 1886, et décisio~i
73. Lettre de l'Administration de la Commune dc Nagar-Aveli au
Gouverneur de Damao, en date du 4 janvier1867 ......
74. Lettre de l'Administration de la Commune de Nagar-Aveli au
Gouverncur de Damgo, en date du IOjanvier 1887, et décisi011
prise à son sujet .....................
75. Lettre de l'Administration de la Commune de Nagar-Aveli nu
Gouverneur de Damao, cn date du II juillet1889 .....
7G. Lettre de l'Administration rle la Commune de Nagar-Aveli au
Gouverneur de Damgo, en date du I~~novembre 1889 ....
77. Lettre du Commandaiît de la Province de Nagar-Aveli à
Antonio de Sepiilvcda I'imentel,en date du II avril1866 . .
78. Lettre du Gouverneur de Dam50 au Ministre Secrétaire d'État
des Affaires de la Marine et d'outremer, du mois de juin 1825
79. Lettre du Secrétairedu Gouverneur dc Dam30 au Comman-
dant de la Province de Nagar-Aveli, cn date du 31 mai 1834 .
80. Extrait du rapport du Chef du Bureau Fiscal et membre du
Conseil du Gouvernement général de l'État portugais de l'Inde,
Francisco da Costa Mendes, en date du 12 mai 1860 .... CONTENTS - TABLE DES MATIÈREÇ XXI
Page
81. Instructionspour lecapitaint: 5020 de Me10 e Castro, Com-
mandant de laForce Arméedans les villages de la Pragnna de
Nagar-Aveli, en dat:e du5 mars 1826 ........... 6g8
82. Leftre du Gouverneur de Da.rn50 au Ministre et SecriStaire
d'Etat des Affairesde la Marine et d'outre-mer, en datc cl\i
Smai 1828 ...................... 700
83. Lettres du Gouverneur (le Dntnao au Gouverneur de Boinbny
ct au Gouverneur cleSurat, en date du 6 décembre 1830 . . 701
84.Lettre de l'Agcnt de Surat au Gouverneur de DamZo, en date
du 27 décembre 1830 .................. 704
85. Lettre de John (?) Romer au Gouverne'ur de Damgo, en date
du 24 décembre 1830 .................. 705
86. Lettre du Secrétaire d'État pour l'Inde nu Gouvernei~r de
Bombay, en date du Gseptembre 1861 .......... 706
87. Extrait de 1s lettre du Vice-Roi D. Manuel de Portugal e
Castro a11Gouverneur de DaniZo, en date du 29 janvier 1829 707
88. Lettre du Gouverneur Généralde l'État portugais del'Inde au
Ministre et Secrétaire dJEtat (lesAffaires de la Marine et
d'Outre-mer, en date du 30 décembre 1897 ........ 708
89. Télégrammedu Rli~iistrsde la Marine et d'outre-mer au Gou-
verneur Généraldi: 1'Etat portugais de l'Inde, en date du
18 février r8gg..................... ?O9
go. Lettre du Gouverneur Géiiéralde l'État portugaisde l'Inde au
Gouverneur de Bombay, en date du 7 février ~goo..... 7x0
91. Lettre du Département Politique de Bombay au Gouverneur
Généralde 1'Etat portugais de l'Inde, en date du 6 octobre
1900 ......................... 711
92. Lettre du Gouverneur de Damgo au percepteur cle Surnt, en
date du 17 mars rgz6 .................. 712
93. Lettre du Chef du Cabinet du Gouverneur Général dc
1'Etat portugais de l'Inde au Secrétaire Principal du Gouver-
nement de Bombay, en date clu zo janvier 1941 ...... 713
94. Lettre du Secrétaire Principal du Gouvernement de Bombay
au Chef du Cabinet du Gouverneur Généralde I'Etat portu-
gais de l'Inde, en date di19 avril 1943. ......... 715
95. 31tmai 1931 r......................de DamiIo, en date du 7,I7
96. Lettre-rapport du Gouverneur Géné~a le l'État portugais de
I'Inde riuMinistre et Secrétaire dJEtat des Affaires de Ia
Marine et d'oiitre-Mer, en date du17juin 1851 ....... 718
97. Lettre du Consul de Grande-Bretagne à Goa au Chef du
Cabinet du Gouveriieur GéiiCr:iliel'Étatportugais dc I'Inde,
en date du 24 janvier1945. ............... 722
?S. Note du Bureau des Services douaniers 5 Nova Goa au Gou-
verneur Général .................... dc l'Inde, en date du
25 janvier 1945 723XXII CONTENTS - TABLE DES MATIÈRES
Page
99. Note du Chef du Cabinet du Gouverneur Général de l'État
portugais de l'Inde, au Consul de Grande-Bretagnc à .Nova-
Goa, en date du 29 janvier 1945 .............
roo. Lettre du délégué britannique aux négociations en vue de
l'application du Traité de 1878, ail déléguéportugais, en
date du 16 décembre 1879 ...............
101. Lettre du Chef du Cabinet du Gouverneur Général de lJEtat
portugais de l'Inde au Secrétaire Principal du Gouvernement
de Bombay, eiidate du 27 mai 1943 ...........
102. Lettre du Secrétaire Principal du Gouvcrnement de Bombay
au Chef du Cabinet du Gouverneur Général de 1'Etat portu-
gais clel'bideen date du 23 juillet1943 .........
103. Lettre du Consul de l'Inde à Goa aii Clief du Cabinet du
Gouverneur Généralde I'Etat portugais de l'Inde, en date du
24 septembre 1948 ....................
104. Lettre du Coilsul de l'Inde à Goa au Chef du Cabinet du
Gouvcrileur Général de 1'Etat portugais rie l'Indendate du
23 décembre 1946 ...................
Iûj. Lettre du Chef du Cabinet du Gouverneur Génirralde l'État
portugais de l'Inde au Consul de l'Inde à Goa, en date du
18 janvicr1949 ....................
106. Lettre du Chef du Cabinet du Gouverneur Général dc l'État
portugais de l'Inde au Consul de l'Inde à Goa, en date du
12 mars 1949 .....................
107. Lettre du Consul Généralde L'Indcà Goa au Chef du Cabinet
du Gouverneur Généralde 1'Etat portugais dc l'Inde, edate
du 4 mai 1948. ....................
108. Lettre du Chef du Cabinet du Gouverneur Généralde l'État
portugais de l'lnde au Consul de l'Inde 5 Goa, cn date du
5 juille1950 .....................
iog. Lettre du Chef du Cabinet du Gouverneur G6néralde l'État
7ojuille1953 l.....................e Damao, en date du
110. Lettre du Gouverneur de Dama0 au Chef du Cabinet du Gou-
verneur Généralde 1'Etat portugais de I'I~ide, en date du
14 juille1953. ....................
111; Lettrc du Gouverneur Généralde l'État portugais cle l'Inde
au Ministre d'Outre-Mer, en clate c20 juille1953 .....
112. Lettre du Ministére d'outre-Mer au Gouverneur Général de
lJEtat portugais dc l'Inde, en date du 3 ao1953 .....
113. Lettre du Chef ctu Cabinet du Gouverneur Généralde l'État
portugais de l'Inde au Consul Généralde l'Inde à Goa, en
date du 2j août 1953 .................
114. Lettre du Chef du Cabinet du Gouverneur Général de l'État
portugais de l'Inde au Consul de l'Inde à Goa, en date du
12 janvier1954 .................... CONTEI~TS - TABLE DES MATIÈRES XXIII
Page
rrg. Lettre du Consul Généralde l'Inde à GoaauChef du Cabinet
du Gouverneur Général de I'Btat portugais de IJInde, en date
du 16 janvier 1954. .................. 743
116. Lettre de la Direction des Services des Finances et de la
Comptabilité de 1'Etat portugais de l'Inde au dueCatiinet
du Gouverneur Général,en date du 19janvier 1954 .... 744
117. Lettre du Chefdu Cabinet du Gouveriieur Général del'État
portugais dc l'Inde ail Consul Généralde l'Inde A Goa, en
date du 22 janvier1954 ................ 745
118.Lettre de la Direction des Services des Finances et de la
Comptribilitéde lJEtat portugais de l'Inde au CdufCabinet
du Gouverneur Général, en date du 23 janvier1954 .... 746
119.Lettre du Consulat Généralde].'IndA Goa au Chef du Cabinet
du Gouverneur Gknéral de 1'El:atportugais de l'lnde, en date
du 30 novembre 1954 ................. 747
120.Lettre du Consulat GéiiéraIu Portugal à Bombay au Secré-
taire Principaldu Gouvernement de Bombay, en date du
3 février1955 ..................... 748
121.Lettre du Consulat Génkral du Portugal à-Bombay au Chef
du Cabinet du Go~iverneur Général de1'Etat portugais de
l'Inde, en datedu 4 février1955 ............ 749
122. Lettrc du Ministère d'Outre-;\fer au Ministère des Affaires
Etrangèrcs, en datedu IO févrierr955 .......... 750
123.Télégrammedu Gouverneur Général de l'État portugais de
l'Inde au Ministre d'Outre-Mer; en date 27 novembre 1953 751
124. Télégrammedu Gouverneur Général de 1'Btatportugais de
l'Inde:LUMinistre d'Outre-Rlei, en date du 28 novembr1953 752
125. Note du Consul Général de l'Inde à Goa au Gouver~leur
Généralde 1'Etat portugais dL'Inde,en date du18mars 1954 753
126. Télégramme du Gouverneur Généralde l'État portugais dc
l'Inde au Ministre du Portugal à New-Delhi, en date du
g janvier1954. .................... 754
127. Télégrammedu Gouverneur Général de l'État portugais de
1'Iiide au Ministre d'Outre-Mer, en date zufévrier1954 . 755
128. Lettre du Gouvern~:ur de Danigo au Secrétaire Principal rlu
Gouvernement de Elombay, en date du 5 mars 1954 .... 756
129. Télégrammedu Ministye du Portugal 5 New-Delhi au Ciou-
verneur Généralde 1'Etat portugais de l'Inde, en date du
rz mars 19j4 ..................... 759
130.Lettre du SecrétairePrincipaldu Gouvernement de Bombay
au Gouverneur de T)mZo, en date du 15mars 1954 .... 760
131. Télégramme duGouverneur de DamZo auSecrétaire Principal
du Gouvernement de Bombay, en date du 25 mars 1954 . . 761
132. Lettredu Gouverneur de Dar1150 au Secrétaire Principadu
Gouvernement de Bombay, en date du 23 avril 1954....
762 CONTENTS - TABLE DES MATIÈRES
XXIV
Page
133. Lettre du Gouverneur de Damao au Secrétaire Principal du
Gouvernement de Bombay, en date du 20 mai 1954 ....
763
134. Lettre du Gouverneur de Damao au Secrétaire Principal du
Gouvernement de Bombay, en date du 21 mai 1954 .... 764
135. Lettre du Commissariat de Police à Goa au Chef du cabinet
du Gouverneur Généralde 1'Etat portugais de l'Inde, en date
du 4 juin 1954 ....................
r36. Télégrammedu Gouverneur Généralde l'État portugais de
l'Inde au Ministre d'outre-Mer, en date du7juin 1954 ...
137. Lettre du Gouverneur de Damao au Secrétaire Principal du
Gouvernement de Bombay, en date du 7 juin 1954 ....
138. Lettre du Secrétaire Principal du Gouvernement de Bombay
au Gouverneur de Damgo, en date du 15 juin1934 ....
r39. Lettre du Gouverneur + Dam20 au Chef du Cabinet du
Gouverneur Généralde 1'Etat portugais de l'Inde, en date du
28 juin 1954 .....................
140. Lettre du ((District Magistratende Surat au Gouverneur de
Damgo, en date du 28 juin1954 .............
141. Lettre du Gouverneur de DarnZo au «District Magistrate1)de
Surat, en date du IO juille1954 ............
142. Télégrammedu Gouverneur Général de l'fitat portugais de
l'Inde au Ministred'Outre-Mer, en date du ra juillet 1954.
143. Lettre du ((District Magistrate1de Surat au Gouverneur de
Damgo, en date du zo juille1954 ............
144. Lettre du Gouverneur de Dam20 au « District Magistratea
de Surat, en date du zo juille1954 ...........
145, Note de Ia Légation du Portugali New-Delhi auMinistéredes
Affaires Extérieures de l'Inde, en date du 23 juillet 1954
[Voir annexe C.no73 à I'excefitionprdiminaire, v1,fip.546-
5471
146. Lettre du (Collector of Centra1 Excise de Bombay au Gou-
verneur de Damgo, en date du II juin 1954 .......
147. Lettre du ((Collectorof Central Excise ide Bombay au Gou-
verneur de DamZo, en date du 5 juille1954 .......
148. Télégrammedu Gouverneur Généralde l'État portugais de
l'Inde au Ministre d'Outre-Mer, en date du27 mars 1954 . .
149. Note du Ministère des Affaires Extérieures de l'Inde à Ia
Légation du Portuga1.a New-Delhi, en date du 7 juin1954 .
150. Note de ln Légation du Portugal à New-Delhi au Ministère
des Affaires Extérieures de l'Inde, en date d18 juin1954 .
151. Note du Consul Généralcle l'Inde à Goa au Gouverneur
Général de 1'Etatportugais de l'Inde, en date d28 juin 1954
152. Télégrammedu Gouverneur Général de l'État portugais de
l'Inde au Ministre d'Outre-Mer, endate du 30 juin 1954 . . CONTEKTS - TABLE DES MATIÈRES xxv
Page
153.Lettre du Chef du Cabinet du Gouverneur Généralde l'État
portugais de l'Inde au Consul Généralde l'Inde à Goa. en
date du 17 juille1954 ................. 785
154. Lettre du Chef du Cabinet du Ministre d'Outre-Mer au
Ministère des Affaires Etrangères, en dateu 16 juillet1953 786
155. gais de l'Inde, d2:;marsu1950eu.............'État portu- 787
1.56 .rticle du Président du Const:il des Ministres du Portugal,
professeur Oliveira Salazar,publié dans le numéro d'avril
1956de la revue «Foreign AffairsI) .........*. 788
157. Bulletin d'information du Commissariat de Police à Goa,
du 17 avril1954. ................... 798
158.Bulletin d'informations du Commissariat de Police à Goa,
du zg juin1954 .................... 799
159 Télégrammedu Gouverneur Général de l'État portugais de
l'Inde au Ministre d'Outre-Mer-, en date du 30 juille1954 . 800
160.Télegramme du Gouverneur Général de l'État portugais de
l'Inde au Ministre d'Outre-Mer, en date du 29 juillet1953 . SOI
161. Rapport du Commissariat dt: Police à Goa, en date du
février1954 .................... $oz
162.l'Inde au Ministre d'Outre-Mer, en date dup3rjuini1954 . .
804
1G3. Note du Ministère des Affaires Extérieures de l'Inde 2 la
Légation du Portugal à New-Delhi, en date du 20 févrie1954 805
164. Télégramme du Gouverneur Généralde l'État portugais de
l'.Inde au Ministre d'Outre-Mer, en date du zo juill1954 . 806
165. Bulletin d'informations du Commissariat de Police à Goa,
du 20 juillet1954 .................... 807
166. Télégrammedu Goilverneur Généralde l'ktat portugais de
l'Inde au Ministre d'Outre-Mer, en datedu 21 juilIe1954 . 808
167. Télégramme du Goilverneur G-énérad le l'État portugais de
l'Inde au Ministre [l'Outre-Mer, en date 21 juille1954 . . 809
168. Télégrammedu Goiiverneur Généralde 1'Etat portugais de
l'Inde au Ministre d'Outre-Mes, en date du 22 juille1954 . 810
169. Note du Ministére des Affaircs Extérieures de l'Inde à la
[Voiriannexe C. noa79àl'excepthi,iuéniiminair,ol.I,fip551-
5521
170. Télégrammedu Goiiverneur Général de l'gtat portugais de
l'Inde au Ministre d'Outre-Mer, en date du31 juillet1954 . 812
171. Télégrammedu Goilverneur Genéral de l'État portugais de
l'Inde au Ministre d'Outre-Mer, endate du 21 juillet1954 . 813
172, Communiqué du Ministère des Affaires Étra~i~èresdu Poi-tu-
gal, du22 juilletIgj4 ..........--..... 814 Pag'agc
173. Télégrammedu Gouverneur Général de l'ktat portugais de
l'Inde au Ministre d'Outre-Mer, en date d24juillet1954 .
174. Communiqué du Ministère d'Outre-hler, du 26juillet1954 .
175. Note de la Légation du Portugal à New-Delhi au Ministére
des Affaires Extérieures de l'Inde,date du 28 juille1954
176. Télégrammedu Gouverneur Général de l'État portugais de
l'Inde au Ministre d'Outre-Mer, en date29ujuille1954 . .
177. Note cie la Légation du Portugal à New-Delhi au Ministère
des Affaires Extérieures de l'Inde, date d26 août 1954 .
178 Note de la Légation du Portugal à New-Delhi au Ministère
des Affaires Extérieures de l'Inde,date du21 août 1954 .
179. Note de la Légation du Portugal à New-Delhi au Ministère
des Affaires Extérieures l'Inde, en date d27 août 1954 .
180. Note de la Légation du Portugal à New-Delhi au Ministère
des Affaires Extérieurcs de l'Inde, en date d2 septembre
1954. ........................
181. Note de la Légation du Portugal à New-Delhi au Ministére
des Affaires Extérieures de l'Inde, en date d4 septembre
1954 .........................
182. Communiqué du Ministére des Affaires Etrangères du Portu-
gal,du II août 1954 .................
183. Communiqué du Ministère des Affaires Étrangères du Portu-
gal, du ~6 août 1954.................
184. Communiqué du Ministère des Affaires Étrangères du Postii-
gal, du20 août1954 ................-.
185. Note du Ministére des Affaires Extérieures de l'Inde à la
Légation du Portugalà New-Delhi, en date du 24 aoùt 1954
[Voir annexeC. no78à l'exceptionpréliminaire,v1,fip.549-
5511
136. Note du Ministère des Affaires Extéricurcs de l'Inde la
Légation du PortugalA New-Delhi, en date duI~~ septembre
1954 [voir annexe C. no82 à E'exceptiopréliminai rol,i,
PP. 553-5551
187. Communication verbalc faite par le Ministre du l'ortugal à
New-Delhi au Secrétaire Généraldu Ministère des Affaires
Extérieures de l'Inde, en date duseptembre 1954 ....
188. Commuiiication verbale faite par le Secrétaire Généraldu
Ministére des Affaires Extérieures de l'Inau Ministre du
Portugalà New-Delhi, en date du8 septembre 1954 ....
189. Discours du Président du Conseil des Miiiistres du Portugal,
professeur Oliveira Salazar, IO août 1954 .......
go. Discours du Présidentdu Conseildes Ministres du Portugal,
professeur Oliveira Salazar, 12 avril1954 .......
191. Communiqué de la Présidence du Conseil des Miriistres du
Portugal, du22 juille1955 ...............
192. Note du Ministère des Affaires Étrangèresde la France à
l'Ambassade du I'ortugal à Paris, en date 28 avril1958 . CONTENTS - TAE~LEDES MATIÈRES XXVII
Page
193. Aide-Mémoire présentépar le Ministère des Affaires Etran-
gères de la France à l'Ambassade du Portugal à Paris, en
date du 13 mai 1958 . . . . . . . . . . . . . . . . . 857
194. Lettre du Professeur Max Rheinstein, complémentaire de son
étude comparative sur le droit d'accèsauxdomaines enclavés 858
19j. "Portugal Overseas and the Question ofGoa-statements and
testirnonies" [Non rt!produite] PART I
--
APPLICATION INSTITUTING PROCEEDINGS
AND PLEADINGS
(continuedl
E'REMIEKE PARTIE
REQU~TE INTRODUCTIVE D'INSTANCE
ET MÉMOIRES
(suite)SECTION B.-PLEADINGS
(continued)4. COUNTER-MEMOR'IA OLF THE GOVERNMENT OF INDIA
Introduction
r.The Government of the Republic of Portugal, having filed
an Application on zznd December, 1955, submitted to the Inter-
national Court of Justice in Juile, 1956, a Mernorial in which it
asked the Court :-
(1)To adjudge and declare-
(A) that Portug:alhas a rightof passage through the territory
of India in order to ensure communications between its territory
and Nagar(cAveli; Damâo) and its enciaved territories of Dadra
(B) that this right comprises the transit of perçons and goods,
as well as the passage of rt:presentatives of the authcirities and
of armed forces necessary to ensure the full exercise of Portu-
guese sovereignty in the territories in question.
(2)To adjudge and declare -
(A) that the Government of India must respect that right;
(B) that it must therefore abstain from any act capable of
hampering or impeding its exercise;
(C) that neither may it allow such acts to bcarried outon its
territory.
(3) To adjudge and declare that the Government of India has acted
and continues to act contrary ta the obligations recalled above.
(4) To cal1 upon the Governnient of India to put an end to this
unlüwful stateof affairs.
2. On 15th April, 1957. the Government of India filed a Prelimi-
nary Objection setting out six separate Preliminary Objections
to the Court's jurisclictionto entertain the above-mentioned
Application of the Government of Portugal. By a judgment dated
26th Nove~nber, 1957 ,he Court rejected the first four Preliminary
Objections presented l>ythe Government of India and joined the
Fifth and Sixth to th(: rnerits. The Court further fixed a date for
the filing of the Couriter-Mernorial of the Government of India
which date, by a later Order of lyebruary, 1958, was exterided until
25th March, 1958. In conformity with the said judgment and the
said Order the Government of Xnclianow filesthis Counter-Mernorial.
3. In this Counter-hiemorial the Government of India maintains
in full force the arguments and çubrnissions which it has previously
presented to the Court on the Fifth and Sixth Preliminary Objec-
tions. It does not thirik that any useful purpose would be served
by repeating these arguments and submissions in this Counter-Mernorial, and it respectfully asks the Court to treat them as
incorporated in the case here presented. It feels bound, however,
to reserve the right to address further arguments and submissions
to the Court on the Fifth and Sixth PreIiminary Objections in its
Rejoinder. The Portuguese Government, in its MemoriaI and
throughout the proceedings concerning India's Preliminary Objec-
tions, refrained to a very large extent from placing before the Court
the evidence in Portuguese archives relative to the claim which
is the subject of its Application. In consequence, the Government
of India is obliged to defer the final statement of its arguments
and submissions on the Fifth and Sixth Preliminary Objections
until after a complete statement of the Portuguese case has been
laid before the Court in the Portuguese Reply.
4. In this Counter-Memorial the Government of India will
address itself principally to the issues of fact and law which appear
to be raised on the merits by the Portuguese claim. Some of these
issues of fact and of law have been presented to the Court in a pre-
lirninary way in the proceedings relating to the Fifth and Sixth
Preliminary Objections. The Government of India has no wish to
burden the Court by a needless repetition of evidence and legal
authorities with which the Court is already familiar. On the other
hand, the Court's examination of the issues of fact and of law on
the merits has to be undertaken on a somewhat different basis
from its examination of them in the preliminary proceedings and,
in consequence, it will have to make a fresh appraisal of the evi-
dence andthe legal authorities for the purpose of reaching a decision
on the merits. On balance, the Government of India considers that,
ev-enalthough this will involve fairly extensive repetition of matters
mentioned inthe preliminary proceedings, it will be more convenient
to the Court to have India'ç case on the merits presented to it as
a tvhole in this Counter-Mernorial than as a disjointed supplement
to the case already presented on the Fifth and Sixth Preliminary
Objections. Accordingly the Government of India, while occasionaIly
referring back to the preliminary proceedings in order to Save
repetition of secondary matters, will set out its case on the merits
in this Counter-Mernorial as a single coherent whole.
5. This Counter-Memorial is divided into eight parts, as follows:-
Part I. The Geographical and General Facts.
Pari II. The Histoncal Facts.
Part III. The Analysis of the Portuguese Claim.
Part IV. The Presumption against Restriction upon the exercise
of Temtorial Sovereignty.
Part V. The Absence of any Restriction on Sovereignty in
General Law with regard to Rights of Passage by Road. Pad VI. The Absence of any Obligation with regard to Rights of
Passage dt:riving frcim Special Treaties or so-called
Local Custom.
Part VII. The Impact on the Passage claimed of the events
which have taken place in Dadra and Nagar Aveli.
Parf VIII. The Conclrxsions.
6. The Government of India linderlines the fact that the case
subrnitted to the Court concerns, and only concerns, Portugal's
alleged rights of transitbetween Daman and the enclaves and
between the two enclaves. As vras pointed outin paragraph 196
of India's Preliminary Objection the allegation in paragraph 57
of the Portugal's Mernorial "that India failed to observe its inter-
national obligations towards Portugaly tolerating the organization
on its territoryf the armed expeditions which were directed against
the Portuguese enclaves" raises an issue which is quite different
from the claim submitted to the Court in the Application. The
Government of India in that paragraph of the Preliminary Objection
forrnally reserved its 1-igto object to any attempt by PortugaI
to introduce into the present case a claim not included into her
Application. The Government of India have thought it necessary
and right to set out in paragraphs 217 et seq. below the main
facts relating to the insurrectio~i in order that the Coumay be
able fully to appreciate what E'ortugal's claims to transit rights
really involve in the actual circumstances of the caseBy its dis-
cussion of the circumstances of the insurrection, however, the
Government of India is not to be understood as having impliedly
agreed to the introduction into the case, on the principle of forum
prorogatum ofany cla.im which did not form part of the actual
demand formulated in paragraph 23 of the Portuguese Application.
Annexes
A large body of evitlence, separately printedaisecond volume,
was attached to India's Preliminary Objection. This body of evi-
dence was arranged in three annexes, of which Annex A contains
historical and political documents relating to the general back-
ground of the case, Annex B documents relating to the institution
of the proceedings in the casand Annex C documents from British
and Indian archives relating to transit of persons or goods between
Daman and the enclaves. The Government of India now submits
to the Court with this Counter-Mernorial certain further evidence
in tu70 nevr annexes, D and E. Annex D contains documents
relating to the general facts on intercourse between Indiaii territory 8 COUNTER-MEMOR OAL INDIA (III58)
and the Portuguese possessions in India. Annex E contains supple-
rnentary historical documents from British and Indian archives
relating to the question of transit between Daman and the enclaves.
The Government of India thinks that it wiii be more convenient
to the Court to have al1India's annexesin a single volume. Accord-
. ingly, Annexes A, B and Chave been reprinted and bound together
with Annexes D and E in Volume II of this Counter-Memoriall.
These annexes will hereafter be referred to in this Counter-Mernorial
and in the further proceedings in the case as Indian Annexes A,
B, C, D and E.
Maps
The attention of the Court is invited to two new maps placed
in a pocket inside the back cover of this Counter-Mernorial. Map
No. I is a map of a part of the re-organized States of Bombay and
Mysore Y Map No. 2 is a larger scale map covering Daman, Dadra
and Nagar Aveli, and surrounding Indian territory 3.These maps are
not intended to be comprehensive maps of the areas concerned.
They are prepared for the use of the Court only in order to enable
it quickly to find the positions of any places mentioned in the
Counter-Mernorial,
Finally, attention is drawn to the glossary explaining the mean-
ings of unfamiliar Indian words which is contained in Indian
Annex CNo. I '.
l In the present edition, the text of A, Band C, as printed in the Counter-
Mernorial,isreproducedafter the PrelirninObjection(see Vol. 1, p189-504).
andthatof AnnexesD and E will be found in this volat pp157-396 [Note by
theRegishy.]
Not reproduced.[Nole bytheRegistry.]
See pocketat end ofthisvolume.[Note by the Registry.]
See Vol. 1pp. 224-227[Nole by theRegistry.] THE GEOGRAPHICAL AND GENERAI, ITACTS
Geography
7.The Portuguese possessions in India are al1 on the Western
coast of the Indian peninsula. Al1of them border on the State of
Bombay. The largest of them iç Goa with an area of about 1,301
square miles. Goa is about 250 miles south of Bombay and is
contiguous to the Inclian administrative districts of Katnagiri,
Kolhapur, Belgaum and North Kanara in the States of Bombay
and Mysore. Next in size is Daman with an area of about21 square
miles. Daman is about. ~oo miles north of Bombay and is conti-
guous to the Indian administrative districts of Thana and Surat
in the State of Bombay. The Portuguese possession of Diu is an
island, 14 square miles in area, and situated south of the Sau-
rashtra peninsula in the State of Bombay.
8. Dadra and Nagar Aveli, tht: enclaves with which the present
case is concerned, are close to Daman, being separated from it by
a strip of Indian territory inthe Indian administrative districts
of Thana and Surat.
g. Dadra is 3 square miles in area and is 54 miles distant from
the Daman frontier. Nagar Aveli is about 185 square miles in area
and is 9 miles distant from the Daman frontier.
IO. Dadra and Nagar Aveli consiçt of 72 villages which are
grouped in ten administrative units, Silvassa being one of them
and also the capital. According to the census o1950 the combined
population waç 41,523 and was divided in the following religious
groups: Hindus 40,492; Christian, 861; Muslims, 159; Parsis, II.
The majority of the population belongs to the backward tribe of
Varlis, Kolis or Adivassis.
II. Nagar Aveli issituated in a mountainous region and is sur-
rounded towards the east by the ranges of the Sahya rnountains
or the Western Ghatz, and consisting of the Ghats of Rhorra,
Sawala, Arnbagaon and Parasbary. The country is covered with
thick forest, bamboos, underwood and long grass, Traffic is possible
only along the openings in the Ghats and where the forestation is
not very thick. OnIy Dadra, Naroli and one ather village are
edirely clear of the forest.
xz. Dadra and Nagar Aveli artwatered by a river known as the
Daman Ganga or the Sandalkhal which, rising in the Ghats
40 miles from the coast in Dharanipur territory, runsthroughDadra
and Nagar Aveli, Surat and Thana districts, and Daman anddischarges itself into the Arabian Sea at the port of Daman. The
river is seasond and rises only in the Indian rnonsoon. During the
monsoon and the summer tides the river is navigable for four or
five miles from its mouth. Upwards it is not navigable even for
small boats except with considerable danger due to the numerous
rocks in the middle of the stream.
13. On the West, Dadra and Nagar Aveli have access to the
Western Railway of India at the,station of Vapi in Indian territory
by the road which passes through Silvassa and Dadra; at the
station of Bhilad by the road from Naroli; and at the station of
Sanjan by the road which goes southhvards from Rakholi .to Udva
in Indian territory and thence to the railway.
14. On the north of Nagar Aveli runs the ancient highway
connecting the important district town of Nasik with Pardi Taluka
in Surat district and the seaports on the western coast. This road
is intersectedby the road between Fatepur and Dharampur both
in the former native Indian State of Dharampur (or Ramnagar)
contiguous to Nagar Aveli on the east and north. The most impor-
tant road connecting Nagar Aveli with Dharampur territory is the
road which joins Rakholi with Fatepur and Kavcha. As said above,
this road joins the main Nasik-Pardi road, and this route of access
to Pardi Taluka and the western coast appears to have existed
from early times.
15. On the south of Nagai Aveli runs another road connecting
Nasik with the west coast at Umbargaon. This runs through the
territory of Jawhar, a former native Indian State. This road passes
through Udva in Indian territory, les5 than a mile outside Nagar
Aveli territory, the point where it is joined by a road from Rakholi.
16.From the modem road between Nagar Aveli and Daman,
known as the Vapi road or the Daman-Silvassa road another road
branches northwards near Vapi in the direction of Pardi. About
half way between Vapi and Dadra yet another road branches
southwards in the direction of Vada to join the Umbargaon-Nasik
road. Several minor roads, camel and cart tracks and paths branch
out from either side of the Daman-Silvassa road, and there is no
fencing or any system of control for preventing entry into sur-
rounding country and into the two main branch roads or intothe
minor roads, camel and cart tracks and paths leading out from
the main road. Nor has any fencing or system of control ever been
maintained along the road at any time, The country that lies
between Daman and Nagar Aveli is agricultural and consists
mostly of fields growing paddy and grass. In the absence of any
fences along the main road there is nothing to prevent perçons or
goods using the road from disappearing into the country on either
side ofthe road.
17. For most of its length the frontier between Daman and the
Indian districts of Surat and Thana is not marked by any natural barriers like hills, rivers etc. Two rivers, the Kolak on the north
and Kalu on the south, form the border for short distances. But
these are shallow rivers which are flooded only for a few days at a
tirne during the few months of rain in the Indian monsooii and are
fordable atal1other seasons and times. Elsewhere the terrain is the
same on both sides of the frontier and there is no continuous fence
or line to indicate the boundary. However, there are stones placed
at intervals of a mileirso to mark the boundary between Daman
and India and along the 29 mile boundary there are also spaced
32 customs posts (called Chowkies), at varying distances inside
Indian territory. The function of these customs posts is to prevent
smuggling of goods across the border, and to control theniovement
of perçons to and from Daman.
18. As to the bounclaries of Nagar Aveli and Dadra, these also
are not properly demarcated. Stones placed at selected points act
as boundary marks and, for the rest, an imaginary line drawn
between the two nearest stones constitutes the boundary. There
are no police, customs or frontier posts of any kind round the
enclaves; and there never have been any. Innumerable minor
roads, carne1 and cart tracks and paths connect Dadra and Nagar
Aveli with the surrounding Indian territory.
19. The economic, co&nercial, social and cultural contact of the
inhabitants of Dadra and Nagar Aveli are with the inhabitants of
surrounding Indian ti:rritory, from whom they are in no way
distinguishable. As has been saicl above, most of these inhabitants
belong to the backward tribes of Varlis, Kolis or Adivassis, who are
poor people and whose economicneeds are not very great. However,
whatever things and services were not available in Dadra and Nagar
Aveli were supplied by contiguous Indian administrative districts.
An example of thismay be cited; when during the Second World
War food rationing was introdiiced in British India, Dadra and
Nagar AveIi were treated as British Indian districts and their
quota was included in that of the contiguous districts of Surat
and Thana. (Indian Annex C. No. 70.)
zo. The main natural wealth of Nagar AveIi consists of forests.
It was the general practice ofthe Portuguese Government to sell
these by public auction, usualiy to Indian merchants, there being
no timber industry inside Nagar Aveli.
Customs Fronfiers beiween Poriuguese Possessio?zs in India and
Britislz India/indepetzdenbIndia
21. From the earliest times the boundaries ofGoa, Daman and
Diu have been closely guarded irom the point of view of customs.
This is testified to by the facts set out in paragraphs Ir5 etseq.
below. The boundary at Daman was particularly strengthened in
view of the possibility of the smuggling into India of salt made in
Daman. This is shourn in the correspondence of 1875 and 1876 oftheCollector of Salt Revenue of the Presidency of Bombay. (Indian
Annex D. No. 1.)Smuggling into India through the Portuguese
possessions on the sea coast was always a problem for the British
Government and continues to be a problem for the Indian Govern-
ment. Smuggling took place not only of the produce of the Portu-
guese possessions but also of luxury articlesimported from overseas.
The problem assumed further importance for the Indian Govern-
ment when a law prohibiting import and consurnption of liquorwas
introduced in the State of Bombay in 1946. Even at the present
time the energies of the prohibition department of the Government
of Bombay are spent mostly on prevention of smuggling from the
Portuguese possessions.
22. The British Government attempted to solve the problem
through a customs union between the Portuguese possessions and
British India. This was brought into force by the Treaty of Com-
merce and Extradition of 1878. (See paragraph 137 below). How-
ever, the experiment was not successful and resulted in considerable
loss of revenue to the British Government.In January 1892, there-
fore, the British Government, having previously given notice under
Article XXII, put an end to the Treaty. A strict customs frontier
with Daman and Goa was again established and this has continued
to the present day. (Indian Annex D. No. 2.)
23. Dadra and Nagar Aveli, on the other hand, were always
treated as British Districts from the point of view of customs.
(See paragraph 147 below.) No customs frontier was maintained
round these temtones and goods moved freely from them into
British India and vice versa. The only restrictions which applied
to these territories were in respect of the illicit manufacture and
movement of Liquor and of the re-import into India of foreign
articles brought into Nagar Aveli through the post. (SeeParagraphs
154-15 below.) A loose check was maintained in this regard by the
nearest Indian excise authorities but no customs check posts or
frontier posts were maintained round Nagar Aveli for this purpose.
24. When the question of import of goods into Dadra and Nagar -
Aveli from Daman did arise, itwas treated as a question of import
into Indian territory and never a question of transit from one
Portuguese possession to another, since Dadra and Nagar Aveli
were not closed but open enclaves. (Seeparagraph 147etseq.belotu.)
On entering India across the Daman border goods became liable to
import duty; after payment of import duty, however, they could
go to Dadra and Nagar Aveli just as they could go to any part of
India; having gone to Dadra and Xagar Aveli they could freely
re-enter any part of India there being no customs or other barrier
to such re-entry (except the restrictions mentioned above in
paragraph 23.)
25. In certain instances duties at the Daman border on import
ofgoodsinto Indian territory were "as a matter ofpersonal courtesy" waived by the British authorities in respect of wines and tinned
provisions intended for the coiisumption of certain Portuguese
European officers resident in Na.gar Aveli. However, when it was
known that the concession was being abused and wines and tinned
provisions re-sold by the Portuguese European Officer concerned
for profit, it was suitably modified. [Seeparagraph 164 below.)
26. The question of exemption from export duty on certain
produce of Nagar Aveli intended for consumption in Daman,
however, constantly :&rosebetween the Portuguese and British
Governments. (Seeparagraph 1x4 etseq.below). In 1819 the British
Indian Government waived export duty on goods crossing the
customs border from British Iridia into Daman on certification
by the Portuguese authorities that these were the produce of Nagar
Aveli. (See paragraph 117 below.)In 1848, however, as a resdt of
Indian produce being taken to Daman under certification of the
Portuguese authorities that it was the produce of Nagar Aveli
the exemption was cancelled. (See paragraph 124 below.) The
Portuguese Government made repeated overtures to the British
Government and the exemption was regranted in 1861 .See para-
graphs 128-12 below.) Between the years1878 and 1892,as has been
seen above, there was a customs union between British India and
' the Portuguese possessions and no questions ofexemption could anse.
(Seeparagraph 137et strq.below.In 1893 the exemption was regran-
ted but only in respect of rice, not of other produce of .Nagar Aveli.
(Seeparagraph 145below.) In1895 however,riceaf theBritish Indian
villages was being exported to Daman free of export duty under
cover of certificates issued by the ,Portuguese authorities. The
British Government clidnot particularly blame the Portuguese
Government. The coni:essionit çaid, was necessarily attendedby
fraud and no precaulion could be suggested whereby fraud, could
be prevented. The concession was accordingly withdrawn. The
Portuguese authorities were requested to make practical suggestions
for preventions of the abuse, biit they were unable to ~nake any
suggestion.(See paragraph 146 below.) In 1895, ~899,1900,1906,
1912, 1918, 1923,1933 and 1035, the Portuguese Government
made efforts to obtai~i the renewal of the concessions but it was
unable to do so. (See paragraphs147-15 below.) The reason which
weighed rnost with the British lndian Governmefit was that since
there were no customs frontiers round Dadra and h'agar Aveli,
lndian produce could i:asily enterDadra and Nagar Aveli and there
could be no way of krlowing which was or was not the produce of
Dadra and Nagar Aveli.
27. After the independence of India the Government of India
continued to treat Dadra and Nagar Aveli as Indian districts from
the point of view of customs, and movement of goods between
these territories andthe surroiinding Indian territory continued
to be as free as before. 28. Nor has there been any change in the position since the
liberation of the enclaves from Portugueserule in 1954.
Travel between Portzlgzkeseossessionsand Briti sndia
29. Before the Indian mutiny of 1857 there appear to have been
no formalities for travel throughout India, including the Portu-
guese possessions. This is testified toby a Notification of the
Governor-General of India in Council dated the 24th November
1856. (Indian Annex D. No. 3.)
30. The Act of 1857 "to make further provisions relating to
foreigners", the first comprehensive Foreigners Act in British
India, was prornulgated to meet the emergency created by the
Indian Mutiny of 1857.(Indian Annex D. No. 4.)It was in the first
instance a temporary measure for a period of two years. This Act
required every foreigner to report to the police or magisterial
authorities on arrival in any part of British Indian territory from
"any port or place not within theaid territories"Italso prohibited
travel inside or passage through British Indian territories without
possession of a licencefrom the British authorities. The Act empow-
ered the Governor-General of India to exempt categories of
perçons from the operation of the Act. Nouch exemption, however,
was made in favour of Portuguese subjects, European or native.
31. The Act of 1857 was continued till the end of1863 by the
Acts of1859 and 1862. In 1864,the ernergency created by the mutiny
having passed, the1857 Act was not renewed;instead the Governor-
General of India in Council passed an Act "to give the Government
certain powers with respect to foreigners", According to its preamble
this Act was intended "to enable the Government to prevent the
subjects of foreign States from residing or sojourning in British
India, or from passing through or travelling therein, without the
consent of the Government." (Indian Annex D. No. 5.)The provis-
ions of the Act were not to corne into force immediately but only by
notification of the Governor-General of India in Council published
in the Gazette of India.
32. The provisions of the Act of1364 relating to the requirement
of Licence for travel or passage and relating to reporting to the
police or magisterial authorities were brought into force the first
time in 1914 in order to meet the ernergency created by the Great
War. (TndianAnnex D, No. 6).The Govemor-General's Notification
of the 8th August 1914 extended the provisions relating to reporting
to the police or magisterial authorities to al1foreigners who were
not "Asiatic" and it extended the provisions relating to the require-
ment of licence for travel in or passage through British Indian
territory only to Gemanç and Austriaris. Thus, for the first time,
Portuguese Europeans were required to report to the police or
magisterial authorities on arriva1 in British Indian territory.
However, they continued to be exempt from the requirement of a licence for travel or passage. "Asiatic" subjects of Portugal
continued to be exempt frorn the provisions both relati~ig to the
reporting of foreigners to police or magisterial.authorities and to the
requirement of a licence for travel.
33. A compulsory passport and visa system was intraduced in
British India for the first time by the Defence of India (Passport)
Rules 1917 Indian Annex D. No. 7.)These Rules were replaced by
the Passport Act of 1920andthe Passport Rules of 1921.In 1921 the
Rules regulated entry only by sea; a passport was not required
for entry over the land frontier. Further, gerçons proceeding from
any port in a foreign possession in India, or in Ceylon were, among
others, exempted from the requirement of holding a passport and
visa. Accordingly, every person who proceeded from the Portuguese
possessions in India, and who landed at a'port in British India,
whether he was Portuguese European, or a native of these posses-
sions, ora foreigner, was exempted from holding a passport. (Indian
Annex D. No. 8.)
34. In 1926,the exemption waz;narrowed to "permanent residents
in India or in a foreigri possession in India proceeding from a port
in such foreign possession, and permanent residents in Iiidia or in
Ceylon proceeding from a port in Ceylon". Now only permanent
residents in the Portuguese possesçions, be they European ornative,
were exempted. However, no pasçport was required for entry over
the land frontier. (Indian Annex D. No. 9.)
35. In 1930, the exemption waç further narrowed to "persons
'domiciled in a foreign possession in India proceeding from any
foreign possession in India". (Indian Annex D. No. IO.) Since, ac-
cording to British Indian law, Portuguese Europeans were not
considered "domiciled persons", they were now required to hold a
passport when proceeding to British India from Portuguese possess-
ions, by sea or by air. They continued to be exempt when entering
India on the land frontier, unless they were engaged in a continuous
journey from abroad.
36, In 1935 a passport was for the first time required for entry into
British Inclia over the land fronti.er. (Indian Annex D. NII.)Since
Portuguese Europeans did not clilalify as persons domiciled in the
Portuguese possessions and did not corne within the category of
exempted persons, they were now required to produce a passport
duly visaed by the British Indian authorities, when entering
British Indian temtory over the land frontier. Natives of the
Portuguese possessions, that is "domiciled persons", continued to
be exempt from the requirement of holding a passport and visa
when entering British India either by sea or air or land.
37. Thus it wilI be seen that between 1864 and 19x4 there were
no formdities for entry into cir travel through British India of
foreigners, including Portuguese çubjects, European or native, and that til1935 no passport or visa was required for entryinto British
India over the land frontier,
38. During the First WorId War the Government of India
considered controlling the border with Goa in order to prevent
entry of enemy aliens through Portuguese territory. At that time
no passenger landing by sea in Portuguese possessions was required
by Portuguese Iaw to produce any document or proof of identity
(unless there was some ground for suspicion against him). The
British Government therefore suggested to the Portuguese Govern-
ment that they might impose a passport system themselves and
thereby CO-operatewith the Governrnent of India in the prevention
of entry of enemy aliens into British India. However, this suggestion
was not acted upon by the Portuguese Government.
39. In 1940, the Government of Portuguese India enquired from
,the Govemment of India as to the ,passport regulations in force.
They were informed that aiipersons who were not domiciled in the
Portuguese possessions had to produce a paçsport duly visaed by
the British Indian authorities before they could enter British
India across the land frontierwith Portuguese possessions (Indian
Annex D. No. 12.)
40. During the.Second World War the question of introducing
measures to detect and prevent the movement of suspected persons
to and from the Portuguese possessions was again considered by the
British Government. On the zznd July, 1944, the Government of
India issued several notifications, under the Defence,of India Rules,
the effect of.which was to prohibit British subjects from crossing
the land frontier with Goa at points other than the prescribed ones,
except under permit from officers specified therein.A Notification
Under the Foreigne'rs Act 1940 directed that:-
"no Foreigner shali depart from British India farplace in Portu-
guese India except under the authority of, and subject to the
conditions prescribed ina permit, in the Form annexed to this
notificationissued by the Registration Authority of the District
in which lie resides".
Another notification of the same date under the ~oreigners Act of
1940 ernpowered "any police officer,any forest officerof the Govern-
ment of Bombay, any officer of the Central Excises and Salt
Revenue Department of the Government of India" to inspect the
passport, certificate of registration. et cetera of every foreigner
entering British India from Goa or leaving British India for Goa
by land. (Indian Annex D,.No. 13.) After the end of the war these
notifications were cancelled on the zznd November, 1945 .Indian
Annex D. No. 14.) . .
. 41.Portuguese subjects, European or native, were not exempted
from the operation of theçe notifications. , 42. On the 27th March, 1945, His Britannic Majesty's Consul in
the Portuguese possessions in India clarified the paçsport position
to the Chief of Cabinet, Nova Goa, in the following terms:-
"At present there are no restrictions on the entry into British
India from Diu of European Portuguese subjects domiciled in
Portuguese India, nor do the Government of India propose to
introduce any such restrictions. European Portuguese subjects not
domiciled in Portuguese India are, however, required to take oua
passport forentry into British India under Rule j of the Indian
Passport Rules, 1921, unless they are specificaUyexempted under
an order of the Government of Xndia."
(Indian Annex D. No. 15.)
43. It may be mentioned here that during the Passport Confe-
rence held at Geneva in 1926, the Portuguese and British Govern-
ments discussed the question of the abolition of the visa requirement
in the case of British and Portuguese nationals desiring to enterthe
territory of the other G.overnment. However, in a letter from the
British Foreign Office to the British Embassy at Lisbon dated the
15th September, 1926, the position of British India in this respect
was made clear. This letter read :-
"The Governments of the self-governingDominions and Southern
Rhodesia have been asked whether they are prepared to make
unilateral arrangements for the admission of Portuguese nationals
into their territories without a visbut it willnot be possible to
include Jndia among the territories to which Portuguese nationaIs
may be so admitted."
(Indian Annex D. No. 16.)
44. There were till 1939 in I3ritish Tndia no regulations or
procedures for the registration of foreigners except as they were
found in the Act of 1864 and brought in force in 1914 in respect of
"non-Asiatic" foreigners, including Portuguese Europeans. A
Registration of Foreigners Act was enacted in India in 1939.
(Indian Annex D. No. 17.)This Act:empowered Government to make
rules for registration of foreigners. The act aIso empowered the
Govemment to exempt "any individual foreigner or any class or
description of foreigner" from the operation of the Act. The Act
was followed by the Registration of Foreigners Rule, 1939, and the
Registration of Foreigners (Exemption) Order, 1939. (Indian
Annex D. No. 18.) This Order, as amended, exempted amongother
the following categories :-
"Any persons of Asiatic birth who by any law for the tiine being
British India and who is a subject of any State having sovereigntyng
over any territory of which the boundaries are coterminous withe
boundaries, external or internal. of India."
"Any foreigner not specifiein any of the preceding clausesof
. this declarationwhci enters Brrtish Inrlia solelyin transit to a
3 destination beyond British India, forso longas he is authorised to
travel in British India undera licence previousIyobtained by him
from the Registration Officerof the place at which he enters British
India and complies with such conditions as to route and other
matters as may be specifiein the saidlicence."
45. It will be noticed that (1) natives of the Portuguese posses-
sions were exernpted from the operation of the Act; (2)Portuguese
Europeans were not exempted, except when they were in transit
under licence from a Registration Officer.
46. The following points emerge clearly from the above account
of the geographical and general facts concerning the frontier and
the travel regimes which have obtained between the Portuguese
possessions and British India.
(1) From earliest times Dadra and Nagar Aveli have been open
enclaves without any police or customs frontier and without
any regulation of the movement of persons or goods between
the enclaves and the surrounding Indian tenitory.
(2)The British Government always maintained a strict customs
frontier at the boundaries of the Portuguese coastal posses-
sions, and particularly at the boundary of Daman.
(3) The roads and paths between Daman and the enclaves are
unfenced and unguarded and there are many roads and
paths equally unfenced and unguarded allowing free entry
and exit between the enclaves and the surrounding Indian
temtory.
(4) Up to 1857 there were no formalities at all for entry into or
travel within India including the Portuguese possessions.
For a short period between 1857 and 1863 the British Govern-
ment prohibited the entry of foreigners without a licence
from the British authorities. From 1864 to August 1914 no
formalities applied to Portuguese entering or travelling
within India. From that month onwards the British Govern-
ment made Portuguese Europeans report to the police on
arriva1 in Indian territory. In 1926 the British Government
made Portuguese, not permanently resident in India, carry
a passport if they entered India directly by air or sea; and
in 1930 the passport requirement was applied by the British
to al1Portuguese unless "domiciled" in India, if they entered
directly by air or sea. In 1935the British Government for the
first time required Portuguese not domiciled in India to
carry a passport when entering British Indian territory from
a Portuguese possession over the land frontier. COUKTER-MEMORIAL OF INDIA (III58) I9
(5) Travel of private individuals overland between any two
Portuguese possessions in India was not subject to formalities
until 1935, except that between 1857 and 1863 no travel
between Portuguese possessions and India was possible
without special licence of the British Government and that
after1914 Portuguese Europeans entering India were subject
to the registration requircnients. The travel of private indivi-
duals between Daman and the enclaves was simply part of
the general regirne of travel without formalities within the
continent of India including Portuguese possessions. No
speciai principles applied to transit of private individuals
between Daman and Nagar Aveli, and the whole Portuguese
concept of special rights of transit for private individuals
during the period up tiIl 1935 issimply meaningless in the
light of the conditions of t.rave1that actually obtained.
(6) The British Government when they found it necessary to
introduce formalities for entry into and travel within India
or even to forbid it had no hesitation in doing so, and their
action was not at any timc complained of by the Portuguese
Government as an infnngement of Portuguese rights of
transi. PART II
THE HISTORICAL FACTS
47. The subject matter of the Portuguese Application is a
claim that Portugal possesses a right of passage through the
territory of India in order to ensure communications between the
territory ofDaman and the enclaves of Dadra and Nagar Aveli,
and that this right extends to the transit of perçons and goods as
well as of representatives of the Portuguese authorities and armed
forces.
48. In paragraph 43 of the Memorial, the Portuguese Govern-
ment has based its aIleged right on the following grounds:
(1)treaty;
(2)custom;
(3) generaI principles of law.
49. In Section B of Part I of its hlernorial, the ~oitu~uese
Government has set out a number of alleged historical facts which
are presumably intended to establish the treaty basis of the alleged
right of passage. The account contained in Section B of Part 1
of the Portuguese Memorial is entitled: "Events leading up tothe
establishment of Portuguese sovereignty over the enclaved terri-
tories of Dadra and Nagar Aveli." The events described therein
belong to the Maratha Period of Indian history;that Period having
come to an end in 1818 when the Marathas were conquered by the
British and their territories annexed to British India. The Govern-
ment of India after making a careful study othe historical material
relating to the Maratha Period contends (A) that the Alarathas
did not part with sovereignty over Dadra and Nagar Aveli in
favour of the Portuguese, (B) that the Blarathas did not create or
acknowledge any right of passage in favour of the Portuguese.
After making an equally careful study of the British Period the
Govemment of India contends that any alleged rights derived
from the Marathas and created during the Maratha Period ceased
to have any validity upon the extinction of the Maratha Power in
1818. The reason is that in 1818 when the British annexed the
Maratha territories they did not consider themselveç bound by
any grants made by the Marathas. As will appear from paragraphs
114-11 b9elow, as early as1819 the British made the position clear
to the Portuguese that any Maratha treaties, decreesorgrants from
which the Portuguese might pretend to derive rights had no legal
force or effects as between the Portuguese andthe British. Further-
more, they also from the first, and consistently afterwards, took
the position that passage over British Indian territory between Daman and the enclaves, as elsewhere, was a matter excIusively
within the jurisdiction of the Bri.tish Government, As a result, the
Maratha treaties, decrees or grants, from which Portugal now seeks
to derive alleged rights of passage,' are manifestly for al1 legal
purposes dead and extinct and have long been so.
50. In Section C of Part 1 of the Memorial, the Portuguese
Government in an attempt to provide support for the grounds of
claim stated in Paragraph 58, has set out a number of alleged
historical facts which are said to establish that ever since 1779
Portugal has possessed and continually enjoyed right of passage
for persons and goods over Indian territory between Daman and
the enclaves. This account of the historical facts, in the view of the
Government of India, is highly selective and completely misre-
presents the position which actually obtained in regard to the
passage of persons and goods ovi:r the Iadian territory in question
during successive periods between 1779 and zznd December, 1955,
the date of the filing of the Portiiguese Application. In its letter to
the Court dated 10th November, 1956, the Government of India,
in applying for an extension of time for the delivery of its pleading,
has previously had occasion to draw attention to the paucity of
the evidence adduced by the Portuguese Governrnent in support
of its claim to a custoniary right of passage on the basis of uninter-
rupted user since the year 1785. The Government of Iiidia then
observed that the number of historical documents relating to the
status of the enclaver and to the passage of persons and goods
between them and Daman is very large, and pointed out that,
although Article 43 of'the Rules of Court requires the applicant
party to annex to its Memorial "copies of al1 the relevant docu-
ments", the Portuguese Government has annexed to the Jlemorial
no more than 54 documents, of tvhich al1 but seven relate to two
comparatively brief ptxiods. The two periods in question are the
firstnineteen years from 1779 and the five years immediately
preceding the filing of the Portiiguese Application, while the long
period of a century and a half lietween 1798 and 1949 is covered
by a mere seven carefully chosen documents. Numerous highly
relevant documents relating to this long period have been omitted
from the Portuguese pdeading, and among these documents is the
important Anglo-Portuguese Treaty of Commerce and Extradition
of 26th December, 1878. The insufficiency of the evidence aclduced
by the Government of Portugal in its Rlemorial is a11the more
surprising since,as previously stated, the burden of prciof in the
present case is manifestly upon 130rtugal.
51. The Government of India will now proceed to recite the
facts divided into three periods: theMaratha Period (1774-1818);
the British Period (18:[8-1947); and the Post-independence Period
(1947-1.The facts relrtting to the Maratha Period, which follow
immediately, show in particular that the grants relating to Dadraand Nagar Aveli obtained by the Portuguese from the Marathas
were grants merely of revenue, and that the titles, if any, obtained
by the Portuguese were revocable titles, terminabie at the will of
the Maratha Ruler; and the facts relating to al1 the three periods
disclose the non-existence of any right of passage over Indian
territory vesting in Portugal.
52. In its Application instituting proceedings against Endia on
aznd December, 1955, the Portuguese Government alleged a
"Treaty concluded between Portugal and the sovereign of Punem
in the year 1779' a'the source of a right of passage over Indian
Territory. Thus it stated in paragraph 5 -
"Portugal'ssaid righwus acknowledged.i?the verytitilby virtue
of which the territories Dadra and Nagar Aveli werepIacedunder
Portuguese sovereignty ..."
in paragraph 7-
"The titlein questionwas the tveatyconcludedin the yew 1779 l
between Portugal and the sovereign of Punem, who at the time
had dominion over the territorieof Dadra and Nagar Aveli"
and in p-rag--ph 8-
"It emerges from the said Treatythat theParfies to it, addztion
to agveeingon the transferof sowereiglyvertheterritoryin question,
had the intentioof creatlngand adually ueated a right of passage
between the Portuguese territory ofDamZo (littoral Damao) and
the enclavesceded and from each ofthese enclavesto the other..."
53. As uill appear below (see paragraphs 66 to 74) no treaty
was executed in Poona in 1779 between Portugal and the Rlaratha
Ruler; Dadra and Nagar Aveli were not pIaced under Portuguese
sovereignty under the alleged treaty or under any otherinstrument
of the Rfarathas; the alleged treaty did not mention, specify or
intend the grant of Dadra and Nagar Aveli or any other enclaved
villages. The alleged treaty did not, as indeed it could not, create,
by express clause or by implication, any rights of passage to en-
claved villages which were not in the contemplation of the parties.
(As will appear below, during the negotiations between 1774 and
1780 both the Marathas and the Portuguese had in their contem-
plation the grant of the revenues of villages contiguous to Daman.
Such villages were in fact selected in 1780. However, the assignment
of the revenues of these villages was rendered impossible owing to
British military activity in the area.)
54. In paragraphs ro to 16 of its Mernorial, the Portuguese
Government alleged that Portugal acquired sovereignty over the
Maratha territory of Dadra and Nagar Aveli undcr the alleged
treaty and under the Maratha decrees in pursuance of the said
1 Our italics.treaty, "thus acquiring ipsofacto the right of access to it as an
indispensable condition to the exi'rcise of her sovereignty". (Para-
graph 16 of the Mernorial.) It will be noticed that in the Mernorial
the Portuguese Governrnent did not allege, as it did iii the Applic-
ation, that the alleged right "w:~s acknowledged in the very title
by virtue of which the territories of Dadra and Nagar Aveli were
placed under Portuguese sovereignty,.. The title in question was
the treaty ..."(Paragraphs 6 and 7 of the Application.) Nor did the
Portuguese Governrnent allege i~i the àlemorial, as it did in the
Application, that the parties to the alleged treaty "had the in-
tention of creating and actually created a right of passage ..."
(Paragraph 8 of the Application.) III the Mernorial the Portuguese
Government was content with the allegation that "Article 17 of
the treaty regulated the cession to Portugal of a certain numbcr of
villages" and that the right of passage vr7as"an indispensable
condition to the exercise of her sovereignty" over these villages.
(Paragraphs 13 and 16.of the Mernorial.)
55. Further researches conducted by the Government of India
in the contemporary papers of the Marathas show quite clearIy
that not only was no right of passage created, either by express
clause or by implication, but the Marathas did not, under the
"treaty of 1779" or under any otherinstrument part with sovereign-
ty over the territory of Dadra and Nagar Aveii. Al1that the Mara-
thas did was to make to the Portuguese an annual grant of Rs.
12,000 for maintaining friendly relations, and for this purpose,
and so long as the consideration of fricndship held good, to assig~i
to them the revenues of certain villages.
56. Saranjam or Jagir (the two terms being interchangeable, Sa-
ranjam being the Maratha equivalent of the Moghul term Jagir)
was the temporary assignment by a Sovereign grantor of a share
of the public revenue from villages or lands. A Saranjam was neither
transferable nor hereditary. It uras enjoyed at the pleasilre of the
Sovereign and was terminable at any time. This tenure is well-
known in India and originated in the Moghill times when it was
knotvn as Jagir. In Maratha country it was known as Saranjam.
The revocable nature cithe grant known as Saranjam or Jagir was
consistentiy stressed by the British Governrnent which did, in fact,
"resume" Inany saranjams and jagirs. There is considerable juris-
prudence on the subject and it appears clcarly from numerous
decisions of British Indian Courts and of the Judicial Cornmittee
of the Privy Council that (A) a Saranjam was a grant only of the
royal share of the revenue, and unless expressly provided for did
not grant any proprietary interest in the soil, and (B) in either case
the grant was revocable at the pleasure of the Goverriment. In
Secrelary of Stcrtev. Gipjabai (A..I.R. 1927 (P.C.) 238), the Privy
1 Our italics.Council held: "Now we find from Wilson's Glossary that amongst
the Marathas the term saranjam was applied specially to a tempo-
rary assignment of revenue from villages or lands for the support
of troops or forpersonal military services usually for the life of the
grantee: also to grants made to persons appointed to civil officesof
the States to enable them to maintain their dignity and to grants
for charitable purposes. These were neither transferable nor heredi-
tary and were held at the pleasure of the sovereign."
A similar view was taken by the Privy Council in RaghojiRao v.
Lakshman Rao (36 Bombay 639),wherein it was held that the term
jagir implied no grant of the soi1but a personal grant only of the
revenue to the grantee. In their niles and regulations relating to
Saranjam and Jagir, the British Government recognized and ac-
cepted that in Indian public Law saranjarns and jagirs were revo-
cable and terminable atthe pleasure of the Government. (Reports
and studies of British officers on the nature of saranjams and
jagir will be found at Indian Annex E. No. 1.) Section 38 of
the Bombay Regulation 7 of 1827 provided that a Jagir was
liable to resumption at the pleasure of the Government. This prin-
ciple was repeated in Section I (3) of the Bombay Regulation 6 of
1833, and in the Saranjam Rules of 1898. In Daz~latraov.Province
of Bombay (49 Bombay Law Reports (1947 page 270) the Full
Bench of the Bombay High Court observed that "the wholestructure
of the Saranjam tenure is founded in the sovereign right, which
can only be changed by conquest or treaty. So founded, jagirs or
saranjams, with the feudal incidents connected with them, are
granted or withheId at the will of the sovereign power, and, if
granted, the fixity of the tenuris always subject to interruptionor
revocation by resumption, be it temporary or absolute in character".
Under the Bombay Saranjam Rules, 1952,al1 saranjams were
resumed by the Government with effect from 1st November, 1952.
(Indian Annex E. No, 1.1
57. As will appear beIow (seeparagraphs 97 to IOZ),the Marathas
attached the Saranjam of Dadra and Nagar Aveli, that is they
attached the revenues of Dadra and Nagar Aveli, on no less than
three occasions. As will also appear below (see paragraph IO^),
in r817, less thana year before they were conquered by the British,
they had formed the intention of revoking the grant altogether.
58. In paragraph IO of the Mernorial, the Portuguese Government
stated-
"As regards the enclaved territoriof Dadra and Nagar Aveli,
they were acquired by the Partuguese in the circumstances which
willbe recited hereunder..."
in paragraph II- I
"The acquisition. of these territories results from the Third
Treaty of Punem which was concluded by Portugal with the
Marhatta Empire in 1779. carriedon,aon the E'ortugueseside,byca Luso-Iridian, Narana (ore
Narena) Sinai Dumo by name--also known as Narana Vital Dumo
or Narana Rau Vital.
A number of que~tions remained pending between Portugal and
the Marhatta Empire, followi~igthe conclusion of the Treaty of
Raia of 1739 by vir1:ueof which certain territories had been ceded
by the Portuguese to the Marhattaç, namely, the territory of
Bassein and a portion of the former territory of Damao (which
constituted its North Province). Negotiations were openeclto settle
these questions. They related particularly to the return to Portugal
of the territories of the North Province, which had been ceded in
1739,or failing such return, tfie acquisition of o.ther territories as
compensation."
and in paragraph 12-
"The Third Treaty of Punern (1779).which resulted from these
negotiations, was drziftedin Portuguese ain Marhatta . ."
jg. The Government of India would wish to observe that the
Portuguese .Government did not annex to itsNemorial the "treaty
of 1739" cited by it in paragraphs 9 andzr of the Memorial; nor the
"first Treaty of Puneni (1740)'' or the "Second Treaty of Punem
(1741) "ited in paragraph g of its Memorial. Had the texts of
these treaties been annexed it wciuld have been seen immediately
that no territorial questions were Ieft openy the "treaty of 1739".
That treaty rcsulted from a military defeat inflicted by the Xarathas
on the Portuguese and there was not and could not have been in
the contemplation of the Parties to make territorial transfers to
the benefit of the Portuguese. It was the "treaty of 1740" which
contemplated certain i.erritoria1 adjustments;and al1 these were
carried out under the "treaty of 1741". (Indian Annex IS. No. 2;
Indian Annex C. No. 32.) The "treaty of 1779" was in no way
related to the treaties of1739 ,740 and 1741 .s \vil1appear below
neither in the negotiations nor iri the text of the "treaty of 1779"
was there a reference to the earlizr treaties.
60. The origin of the "treaty of1779" lay inthe conflict between
the hlaratha and Portiiguese fleets on the Indian Scas and in the
civil war which broke out arnong the Marathas in 1774. In 1769 four
Portuguese vesseIs were seized by the Maratha fleet near Bassein.
In 1774, Camara, Governor and Captain Geneial of Goa, deputed
his envoy, Nsrayan Vithal Dhume, to the Poona Court for opening
negotiations with the Marathas relating to compensation for the
capture or destruction of the Portuguese vessels. This facl; emerges
clearly from the negotiations betmeen 1774 and 1780 and frorn the
various drafts of the treaty made between those years. Et is also
a fact generally knowri to historians and is given in "The Historyof thePortuguese in India" by F.C. Danvers, published at London
in 1884.
61. The first draft of the Treaty appears to have been drawn up in
1775 by the Portuguese envoy, Narayan Vithal Dhume. (Tndian
Annex E. No. 3). The preamble of this draft stated the object of
the treaty to be "perpetual amity without interruption". The draft
was discussed between the Portuguese envoy, Dhume, on the
one hand, and Trimbak Vinayak, a Maratha official, on the other.
It consisted of 21 articles which dealt with matters of commerce
and navigation. This draft did not contain any rcference to cession
of territory or the assignment of revenues.
62. The next document in point of time is available in a Maratha
collection known as the "Ithas Sangraha, Par Darbar Maratha
Vakils", which can be translated as "Historical Collection relating
to Maratha envoys from Foreign Courtst'. (It may be mentioned
here that Dhume, the Portuguese envoy, was a Maratha of Goa,
and belonged to the caste of Shenvai Brahmins). This is a memo-
randum of the Poona Court, dated 24th August, 1776, and it
describes the mission of the Portuguese envoy. (Indian Annex C.
No. 6.) It appears from this document that Dhurne offered on behalf
of the Portuguese to abandon the cause of the dissident Maratha
Chief, Dada Saheb Raghoba, and to make a treaty of friendship
with the Peshwa, the Suprerne Maratha Ruler l, on this basis. The
memorandum also referred to Dhume's representations for com-
pensation to the Portuguese for their loss of shipping. According
to the terrns of this document friendship was to be established
between the Portuguese and the Marathas: the Portuguese were
to refuse aid or asylum to Dada Saheb Raghoba or any other
enemy of the Narathas; sirnilarly, the hiarathas were to refuse
shelter to the enemies of the Portuguese; and the Marathas were
to assign Kamal revenue of Rs. 15000 per year, that is revenue
not exceeding Rs. 15000 per year, from villages continuing under
the authority of the Marathas and in which the Portuguese were
not to construct any buiIding. The draft of the article relating
to the assignment of revenues was made in the following terms 2:-
"The Sarkar3 and the Firangee4 entered into friendship. Therefore
the Firangee should be assigned villages of the total revenue yield
The Peshwa was in name the Chief Minister of the MarathRaja of Satara.
In fact he was the Maratha Euler and the head of the Maratha Conlederation.
His capitalwas at Poona.
aThe Government of India has hadthe Maratha and Portuguese documents
translatedinto English directIy from the original tAl1translations quotedin
the textof the Counter-Mernoriaor given in the Annexes, unless indicated to the
contrary, havebeen made directlyfrom the original.
That is,the Maratha Government of Poona. See Glossary at Indian Annex C.
No. r.
' Maratha term for Portuguese.See GIossary at Indian Annex C. No. r. of Rs. r5,ooo usefulto Daman. Care should be taken that after the
assignment the authority of the Sarkar will meet with no ob-
struction. Accordingly without interruption of Sarkar's autiiority
they should be assigried.Imarat should not be erected invillages
so granted. Accordingto this, agreement be made."
It may be explained here that it was the practice in India in
those ti~ries not to permit a Saranjamdar or Jagirdar to erect
Imarat, that is abuilding, stronghold or fortification,in the villages
the revenues of which were assigned to him.
63. On the arst January, 1777, Camara, the Governor and
Captain of Goa, wrote t:o Sakharam, a Maratha official, requesting
that in accordancewith the understanding reached by the Marathas
with Dhume, the Portuguese eiivoy, villages adjoining Daman
may be assigned to the Portuguese. (Indian Annex E. No. 4.)
64. On the zxst October, 1777, the Portuguese envoy, Dhume,
and Vinayak, the Maratha official, appear to have drawn up a
joint draft. This draft closely foltows the draft of 1775 (see para-
graph 61 above) except for an adtlitional article, number 16, under
which the Portuguese were to undertake not to give asyium to
Raghoba. This draft did not mention the cession of any territory
orthe assignrnent of any revenues. (Indian Annex E. No. 5.)
65. Next followed a draft treaty in the Portuguese language
under the signature of Camara and dated the 4th May 1779. (Indian
Annex C. No. 2.)
66. A draft treaty iri the hlarctthi language, made in the name
of the Maratha Ruler, and dated the r6th December, 1779, has
been discovered among the papers of the Marathas. (Indian Annex
C. No. 3.) This document is described as "Kararnama", that isan
Agreement, in contradistinction to the description "Tuhanama",
a Treaty. This document does not contain the seal of the Peshwa
and its concluding worclsread: "Agreement should be made to that
effect".
67. On the 17th December, 1779, the seal of the Peshwa was
affixed to the above draft treaty or "Agreement to make a Treaty",
and this document was forwarded by the Peshwa to the Portuguese
at Goa. This appears from the "Collection of Treaties, etc." by
Biker 2.There is found in that book a translation into Portuguese,
carried out at Goa on the 4th January, 1780, by Anant Kamodi
Wagh, the officia1 Marathi translator to the Yortuguese Government,
of s letter purported to be addrecsed from the Peshwa to De Sousa,
the successor of Camara. (See paragraph 63 above.) This reads:
' Meaning buildings, structurfortificatietceteraSee Glossarj, aIndian
Annex C. h'o.I.
"Colleyüo dTraladose ConcertodePazes" by J.F.J. Biker, Lisbon1885.28 COUNTER-MEMORIAL OF INDIA (III58)
"To the Illustrious owner of the great State, and Moulder of Fate,
the Grand Dom Frederico Guilherme de Sousa, Governor of the
Ports of Goa, whose friendship may be everlasting.
After expressingrny great friendship 1 Say that 1 am extremely
happy to hear from the Iips of the esteemed Narayan Vithal, that
you have been entrusted with the Government of those ports, and
he spoke to me also of the virtues of your prudence arid ofyour
distinguished perçonality.
The Grand D. Jose Pedro da Camara, former Governor of those
ports, sent, for the purpose of strengthening the friendship of my
Sarkar, the Treaty of agreement, which was given to my Sarkar
by Narayan Vithal. Now, 1have directed that the Treatyof Agree-
ment, on the part of my Sarkar, rnaybe handed over to the above
ledge receipt of the same,ando1 desire the reciprocal observance of
what has been agreed. And as a token ofmy fnendship I send you
five pieces ofcloth,specified, in a separate Iist, which will reach
there. Written on the 13th of the month of Gilahez, which in
Portuguese cor~esponds to 23rd December. 1 shall not proceed
further and this is the letter." (Indian Annex E. No. 6).
68. The Collection of Biker also contains a translation made at
Goa on the 6th January, 1780, by the same Anant KamodiWagh,
the official translator of the Portuguese Government, ofthe Maratha
draft treaty of 17th December, 1779. (Indian Annex C. No. 4.)
69. On the 11th January, 1780, the draft treaty in Portuguese
of the 4th May, 1779, referred to in paragraph 65 above, was
"confirmed" and counter-signed by Camara's successor, De Sousa.
(Indian Annex C. No. 2.) The archives of the Marathas have
revealed a translation intothe Marathi language of the Portuguese
draft treaty of 4th May, 1779, as "confirmed" and counter-signed
on 11th January, 1780. It appears that this translation from the
Portuguese laneage into the Marathi language was made by
Narayan Vithal Dhurne, the Portuguese envoy and negotiator at
the Poona Court. (Indian Annex C. No. 5.)
70. It appears from the Collection by Biker that on the
1st January, 1781 D,e Sousa, the Portuguese Governor of Goa,
wrote to Lisbon for the Queen of Portugal's approval and accep-
tance of the Maratha draft treaty. He wrote as follows:
"My predecessor sent Narayan Sinai Dumo, Envoy on behalf of
'the Majestic State to the Court of Poona, of Madhav Rao Pandit
Pradhan, Ruler of the Marathas in order to discuss and conclude
the negotiation of peace and interests of the State. The Envoy had
not yet been made and concluded; as soon as 1 took cognizance ofad
everything, 1 issued instructions to the said Envoy to request and
conchde the Agreement and Treaty.
Madhav Rao, Ruler of the hlarathas, signed the Treaty and
forwarded it to me, with the request that 1 sliouId approve it.
1 approved it and signed it as it seemed convenient in the public
interests of the State. As a result of repeated steps taken and letters addressed to the
Ministry of the said Court throiigh our Envoy, we received drafts,
so that by one remittance 15,509rupees were paid, and by another
5,000 rupees, totalling 20,500rupees, with the advance of 3 per cent.
Al1this has been collected and credited to the Royal Exchequer;
the said advance prciceeds from the higher value of the Maratha
rupees over Goa rupees.
The remaining amount, as promised in the Treaty, has not yet
been paid, nor the villages near Daman have been handed over,
despite repeated reminderç, because of the doubts raised by Subedar
Vassagi Pant, administrator of the said villages, in the execution of
the Sanads, or orders of the said Madhav Rao; nor can they be
handed over now, in view of conquest made intliem by the British;
however, the Ministry of the said Court promises to hand over
other villages, yielding income in the amount mentioned in the
Treaty, even though they may not be situated near the jurisdiction
of the said city of Daman, towards which end I am negotiating
through the s$d Envoy.
Treaty; of which I inform you,s oinorder that it being submitted to
Her Majcsty, she may decide wliat she thinks is the best. May God
preserve yau." (Indian Annex E. No. 7.)
71. The Governor of Goa receikred a reply from the Secretary of
State at Lisbon as follows:
"Your letter sent along with the translation of the Treaty conclu-
ded with the Narathas has been submitted to the Queen, Our Lady,
and though some clauses of the Treaty have been badly translated,
and cannot be understood, fronl what one can infer from them, it
would appear that this agreement is suitable to us; accordingly Her
Majesty has found fit tu approvr:the said Treaty."
(Indian Annex E. No. 8.)
72. From the above it emerges clearly that the only text of the
draft treaty which was seen and approved by the Queen of Portugal
was the Portugziesetransiution of the Maratha text of 17th December,
1779 ;andthat the Portiiguese text of 4th May, 1779111th January,
1780, was not sent to her by the Governor of Goa, nor did she sign,
approve or ratify that text, or indeed any other text. A photostat
copy of the original Maratha test of 17th December, 1779, was
supplied by the Portuguese Goverriment with its Meinorial. (Annex r
to the Mernorial: "Photocopy of the Original-Maratha Text9'l.)
In this photocopy there does not appear any sign, seal or counter-
signature to indicate the approval and acceptance of the document,
either on the part of the Governor of Goa or the Queen of I'ortugal.
Nor is there any evidence that a copy of the same document with
the seal and signature of the Governor of Goa or the Queen of
Portugal was sent to the Maratha Ruler. The Governrnent of India
contends, therefore, that the document of 17th December, 1779,
l Photostatnot reproduced.[Note by the Registry.]cannot be said to constitute a treaty between two parties. It may
also be mentioned in this connection that the Portuguese were in
the habit of refusing to approve and accept a treaty several years
after it had been signed by the other party. An instance may be
cited of the treaty signed by an Indian Ruler, the Angria, in 1778.
The Viceroy of Goa sent it for the approval and acceptance of the
Queen of Portugal but the approval and acceptance was refused as
late as 1782. (Indian Annex E. No. 9).
73. Furthermore, as will be explained below, the Portuguese
translation of the Maratha text, which was made at Goa by
Wagh, the officia1Portuguese translator, was not in fact a faithful
translation: indeed it was a paraphrase of the Portuguese draft of
4th Iifay, 177g/11th January, 1780 (see paragraph 69 above) and
not a translation, as it pretended to be, of the Maratha text of
~7th December, 1779.
74. In view of the factsset out above, it is highly doubtful if the
Maratha document of 17th December, 1779, could be described as
has been done by the Portuguese Government as "The Third
Treaty ofPunem which was concluded by Portugal with the Maratha
Empire in 1779". (See paragraph II of the Mernorial.)
75. Further, if the four texts-the Portuguese text of 4th May,
1779111th January, 1780; the Maratha text of 17th December,
1779; Wagh's translation into Portuguese of the Maratha text;
and Dhume's translation into Marathi of the Portuguese text-
are kept side by side, it emerges that (A) the two treaties differed
in text, and (B) what purported to be a contemporary translation
of,for example, the Maratha text, was in fact not a translation at
all, but a repetition of the Portuguese text with certain alterations
to make it appear as a document emanating from the Marathas.
That is, Anant Kamodi Wagh and Narayan Vithal Dhume, both
belonging to the same caste of Shenvai Brahmins, both in the pay
of the Portuguese Government, presented to the Portuguese an
altered text of the Portuguese document as a translation of the
Maratha text, and to the Marathas an altered text of the Maratha
text as a translation of the Portuguese text.
76. It is not of much relevance whether Anant Kamodi Wagh
and Narayan Vithal Ilhume acted in collusion with each other.
What is of relevance is the fact that the parties had no means of
knowing and did not know what was in the text prepared by the
other party.
77. The divergence in the texts obtains particularly in the case
of Article 17.A modern transIation of Article 17 in the four texts
reads as follows:
In the Portuguestextof 4th May 1779111thJanuary r780
"As the hfajesticState has evincethegreatest friendshiptowards
the Pandit Pradhan, as proved by the Attorney, Pandit Pradhan has agreed to make a contribution in Daman of rz,ooo rufieesstarting
from this year through his Dainan jurisdiction by virtue of which
he shallspecificallygive to the ijtate the Sanad or the confirmatory
order of the villages." (Indian Annex C. No. 2.)
In the Marntha lexl of17th Deceliaber1779
"Narayan Vithal Dhume conveycd assurances that the Firangee
had evinced friendly sentiments towards the Sarkar and would in
future be more friendly. In response, it is agreed that villages
yieldivcgrevmue of tzvedvethousa~d rupees where the authority of the
Sarkar is zknimpeded would be assigned towards Daman from the
cztrrentyenr. The Firungee will fzotraise a?$yIntarat in tlzesame a.
Such villages willbe specified." (Indian Annex C. No. 3.)
In Wagh'stranslatio?~ of theMaratha fext
"As the Portuguese have acted with the greatest friendship
towards this Sarkas, as proved by Naraen Vital Dumo, which
friendshipshall be rnaintained Iienceforward, from the current year
he shall give, namely in Daman, villages of rz,ooo rupees, withoud
having iinthem domi.pzion,nor any otheuhindrance orcthe#art of the
Sarkar land in which the -Portuguese-shall-not erect buildings in
accordance with the arrangerntmt made, (Indian Annex C. No. 4.)e
specificallymentioned."
Ir, Dhume'stvanslatiolaoj thePortugsese text
"The Firangee State entertains friendly sentiments towards
Pandit Pradhan; the envoy conveyed assurances. Therefore it is
agreed that the Pandit Pradhari should assign towards Daman fro~
the czcvrentyear a Jagir of the revelzueof twelvethousand r~pees l in
Prant Daman. Accordingly a sanad listing the villages be given to
the Firangee State by making a separate agreement."
(Indian Annex C. NO. 5.)
78. It will be çeen a.bove that Wagh's translation differs radi-
cally from the otherthreetexts, and that Wagh's translation is the
only text cited and relied upon by the Government of Portugal.
(See paragraphs 12 and 13 of the Memorial.) It will also be seen
that the Maratha text, the Portuguese text and the Maratha trans-
lation of the Portuguese text are agreed on the intention of the
Marathas to assign an annuity of Rs. ~z,ooo to the Portuguese; and
that the Portuguese text uses the ulord "contribution", and
Dhume's text uses tht: word "Jagir".
79. The Government: of India would wish to draw the attention
of the Court to the faci that while in paragraph 12 of its Memorial
the Portuguese Government stated that "the third Treaty of Punem
(1779) which resulted Irom these negotiations was drafted in Por-
tuguese and in Marhatta", it did not give a clear account of the
actual facts, nor did it annex to its Iilemorial the Portuguese text
Our italics.of 4th May, 177gj11th January, 1780, or a transIation thereof in
the Marathi language, Article 17 in which translation described the
grant as a "Jagir"; nor, while it mentioned the Maratha text of
17th December, 1779, in the same paragraph, did it annex a direct
translation of that text. Al1 that the Portuguese Government
annexed was a translation in French of the officid Portuguese
transJation of Anant Kamodi Wagh and a photostat copy of the
original in the Marathi-hfodi script.
80. The Government of India respectfully calls the attention of
the Court to the fact that while it may be contended that the
language used in the translation of Wagh implies the grant of some
kind of sovereignty over the villagesin addition to the assignment
of the revenues, al1 the Maratha versions, particularly the text
of 17th December, 1779, which bears the seal of the Peshwa,
expressly limit the grant to a temporary assignment of revenue,
in a tenure known as Jagir or Saranjam. The Government of India
submits that in so far as the grant is purported to have been made
by the Marathas it is'the Maratha documents that are relevant,
and the terms of the grant are to be gathered from the original
Maratha documents and not from alleged Portuguese translations.
81. Moreover, the Queen of Portugal having approved only the
translation of Wagh, which, according to the admission even of the
Portuguese Secretary of State was badly done and could not be
understood (see paragraph 71 above), she and the Maratha Ruler
obviously did not arrive at any agreement as to what was being
granted, and were at cross purposes in this regard. Wagh's transla-
tion of Article17 in particular and which was the only version of
Article 17 seen by the Queen of Portugal is, to say the least,
ambiguous, and its grammatical construction lends itself to the
conjecture that the ambiguity was not accidentai. However, itis
not necessary to speculate as to the motives which led to an incor-
rect translationof the Maratha text being placed before the Queen
of Portugal. It is sufficientto point out that the parties had no
means of knowing and did not in fact know what was in the text
of the other party and were not ad idem. So far as the Marathas
were concerned, it is clear that they had no intention of parting
with sovereignty over any part of Maratha territory, specified or
unspecified in the document of 17th December, 1779.
82. The following position emerges from the facts stated above :
(1) The treaty as proposed by the Marathas on the 17th Decem-
ber, 1779, was not approved or accepted by the Portuguese; the
Queen of Portugal did not receive a faithful translation of the
Maratha text of 17th December, 1779;
(2) The Portuguese text of the proposed treaty was not seen or
approved by the Queen of Portugal; nor was it accepted or approved
by the Marathas; nor did the Marathas see a correct translation
of that text; (3) There was a divergence between the Portuguese and the
Maratha texts;
(4)The documents did not constitute a treaty between the
parties;
(5) The Maratha texi: made it clear that a grant only of the
revenues was in question;
(6) The Portuguese text while being different from the Maratha
text also contemplateci a fiscal grant;
(7)Wagh's translation of the Maratha text was incorrect and
ambiguous ;
(8)Wagh's translatio~i is the text relied upon by the Portuguese
Government .
83, It follows that in so far as the Portuguese claim is alleged
to be denved from a "treaty of 1779" it must inevitably fail.
84. The nature ofthe interest actually granted to the Poi-tuguese
in the Maratha villages is clearly brought out in the manner in
which the grant of revenues was made. These grants were made
under sanads. A sanaci expresses the notion of a royal grant,
diplorna, charter, patent; it sigriifies a document in respect of
emoIuments, titles, prîvileges, offices or rights to revenue, etc.,
made under the seal of the Sovereign. The expression descended
from Moghul times, was used by the British Government in India,
and is still used.A sanad, by its definition, could not bring about
a grant of sovereign rights or rights imposing a binding obligation
on the grantor. It was always rt:vocable.
85. On 19th December, 1779,a rnemorandum of the Pooria Court
directed the issue of a sanad to the Subedar of Bassein that he
should select villages adjoining :Daman of the total revenue of
Rs. 12,000 for the Portuguese and of the total revenue of Rs. 3,000
for the Portuguese envoy, Narayan Vithal Dhume, (Indiaii Annex
C. No. 7). In accordant:c with the above resolution, sanads were
issued to the Subedar of Bassein,on 10th February, 1780,in respect
of the revenue grant to the Portuguese, and on 11th February,
1780, in respect of the revenue grant to the Portuguese envoy.
The relevant Marathi documents are entitled: "Saranjani to the
Firangee of Goa". (Indian Anne~c C. No. 8).
86. The Sanads and orders in respect of.the grants to the Portu-
guese and to Narayan Vithal Dhume were in identical terms and
no distinction was made between the two parties both being con-
stituted Saranjamdar or Jagirdar by virtue of these grants. This
appears again and again from the documents relating to these grants.
87. In cornpliance with the above sanads, the Subedar of Bassein
selected from Pargana Ichaladi I'awadi (a district contiguous to
Daman) nine villages of the total revenue of Rç. 12,015 for the
Portu~uese and two villages of the total revenue of Rs. 3,000 for
4the Portuguese envoy, Narayan Vithal Dhume (Indian Annex C.
No. 9.)
88. An entry in the day book of the Peshwa made on 3rd June,
1780, reproduced the sanad in respect of the grant to the Portuguese
issued on 31st May, 1780 .his reads:
'Therefore from these villages excluding Sarkar's Watans 1and
Zakat the reçt of the right of share in the revenue has been so made
over to the Firangee that it may revert on the termination of the
grant. Revenue of these villages may be shown on the debit side
in the accounts of the Prant 3. Construction of Imarat in the villages
should not be permitted. Sanad to Visaji Keshav accordingly. Sanad
to Mukadams %of nine villages to the effecl that they should make
themselves amenable to the Firangee and pay him the revenue of
said villages exclusive of Sarkar's Watans and Zakat. Agreement
Iias been made that no Imarat is to be raised in the said villages.
Therefore no Imarat may be permitted to be raised."
(Indian Annex C. No. IO.)
89. Another memorandum of the Peshwa's Court of 3rd June,
1780,gave the details of the grant to the Portuguese andto Narayan
Vithal Dhume; enumerated the revenue which could be collected
by the Portuguese and by Ifarayan Vithal Dhurne, such as land
revenue, house tax, fowl tax, cart tax, vegetable tax, profession
tax, etc., reserved the Watans of Deshmukh 5, Deshpande 6,Kul-
kami6 and Pate16, as well as the Zakat, for the Maratha State;
and it described the grant both to the Portuguese and to Narayan
Vithal Dhume as Dumala. (Indian Annex C. No. II.) After setting
out the details mentioned above this document reads:-
"Nine villages granted to Firangee Rs. 12015.It has been agreed
to grant viIlagesof Ks. 12000. On account of this nine villages from
the current year exclusive of Zakat and the rights of the Hakdars
of the total amount of Rs. 1201 jhave been granted to the Firangee.
Sanads and letters in respect of this:- I
I. Sanad to Visaji Keshav .of Prant Bassein ttiat the above
viIlages may be given to the Firangee in Dumala and the total
receipts of the revenue may be shown on the debit side.
I. Sanad to Mukadams of the nine villages that they should
present themselves to the Firangee and pay the revenue
regularly.
I. Eetter to the.Zamindars
3. Three sanads to be issued accordingly.
,.
Lettevs to the snme effect about the two villages Kztmbhariya and
S-ZL~~g Uanted tothe Firangee envoy Narayala Vithal Dhume."
l Dues attached to hereditaryofices. See Glossary at Indian Annex C. No. r.
Annex C. No.dI.iesand taxes on market produce, etc.Seo Glossary at Indian
Province.
Village headmen charged with collection of revenue. See Gtossary at Indian
Annex C. No. r.
See Glossary at Indian AnnexC. No. 1.
Landholders.See Glossary atIndian Annex C. No. I. go. Dumala signifies the reversionary nature of a grant. It de-
scribes a revenue grant made for service, or throiigh favour, subject
to resurnption at pleasure. (See Glossary at Indian -4nnex C. No. 1,)
gr. The above docunients show clearly that the Portugueçe mfere
granted a terminable right of collecting certain revenues; that
certain dues were to be reserved for the Maratha government ; that
the Portuguese were ~iot to raise any building in the assigned
villages; that there tvas no quest.ion of sovereignty being granted
to the Portuguese over any part of Maratha territory, ancl that no
distinction was intended in these respects between the Portuguese
and Narayan Vithal Diurne.
92. Hotvever, as a result of rnilitary activity on the part of the
British in the districts surrounding Daman, the grant of reveniie-
villages from Pargana Khaladi, contiguous to Daman, could not
bemade, and no assignment was made for three years. A niemoran-
dum of the Poona Court of 30th January, 1783, explained the
circumstances and directed the selection of new villages of the total
value of Rs. ~z,ooo. (Indian Annex C. No. 12.)An identic,I memo-
randum was made the same day in respect of the grarit to the
Portuguese envoy, Narayan VithalDhume (Indian Annex C. No. 13.)
In accordarice with the above r<:solutions sanads appear to have
been issued by the Peshwa to the Subedars of Bassein. (Indian
Annex C. Nos. 14 and 15).
93. Although in 1783 '~ar~ana Khaladi Pawadi was free from
British occiipatiori or military activity, it was nonetheless decided
to assign revenue villages away from Daman, in Pargaria Nagar
-4veli. In 1783, the ei-itire Mahal l, that is, the revenue of fhe
district, except that of six villages of Pargana Nagar Avelj, was
assigned to the Portuguese. The Maratha Government reserved
the Zakat of the entire Pargana of Nagar Aveli to themselveç. (In-
dian Annex C. No. 16.) The documents again make it clear that
what was assigned was the Mahal of the Pargaria "nd not the
Pargana itself. The word ~'dalzalrefers not to territory but to a
grouping of villages for revenue purposes.
. 94. That the grant intended iri Article 17 of the Maratha docu-
ment of 17th December, 1779 w,ns of a fiscal nature is clearly con-
firmed by the fact that, forthe three yearç that the revenue-villages
could not be assigned, t.he Marathas paid to the Portuguese equiva-
lent compensation in cash. A memorandum of the Peshwa's Court
of 1st March, 1784, suggests that the arrears of the cash compen-
sations were compounded after .negotiations with the Portilguese
envoy. (Indian Annex C.No. 17.)
1 Mahal meansin this corinectiori a grouping of forpurpose of revenue
assessment.ee Glossary at Indian Annex C. 1..
2 Pargana alsmeans E'rc~viria divisioof territorfor administratipur-
poses. smaller than Prant. See GIossary :rt Indian Annex C. No. r.36 COUNTER-~IEMOBIAL OF INDIA (II58)
95. Further, the assignment in 1783having proved to be short of
the annual yield of Rs. ~z,ooo, the Portuguese envoy made repre-
sentations to the Peshwa, and in consequence a fresh assignment was
made in 1785. The revenue of six remaining villages of the Mahal
of Pargana Nagar Aveli were assigned to the Portuguese. In
addition, the "Zakat of Pargana Nagar Aveli", that is theZakat of
Dadra and Naroli, was also assigned. (Indian Annex C. Nos. 18 and
24.) As will be seen below in paragraphs 98 to 101, the Marathas
continued to reserve to themselves what was known as "Ramnagar
Zakat".
96. The fiscal character of the grant is further brought out
inthe account papers of the Marathas, from the year 1783,when the
first assignment of villages was made, to the year 1818 when the
Marathas were conquered by the British. These papers describe
the Mahal of Pargana Nagar Aveli as having been given to the
Portuguese in Saranjam, and show the amount annually realized
from the Mahal as "Par Darbar Kharch Nisbat Firangee Goaekar",
that is, "Expenditure on Foreign Affairs concerning the Portuguese
of Goa." (Indian Annex C. Nos. 19,20 and 21.) Till the Marathas
u7ereovercome by the British, detailed accounts were maintained
of the Mahal of Pargana Nagar Aveli by the local administrators
of Taluka Bassein of which Pargana Nagar Aveli formed part, as
well as in the Peshwa Daftar lat Poona. (Indian Annex C.Nos. 19,
20 and 21.)These documents show quite,clearly that the Pargana
of Nagar Aveli continued to be within the sovereign jurisdiction
of the Marathas, and that al1 the Marathas had granted to the
Portuguese was a Saranjarn, that is a share of the public revenue,
the annual amount being considered as expenditure on friendly
relations with the Portuguese.
97. On three occasions, mentioned below in paragraphs IOO to
102 the Marathas exercised their sovereign rights and attached the
saranjam. This they did in order to settle the debts owed to them
by the Portuguese. These debts related to Ramnagar Zakat.
98. Pargana Nagar Aveli originally formed part of the territory
of the Raja of Ramnagar, later known as Dharampur. In the early
eighteenth century, the Marathas acquired the right to collect
Zakat in Pargana Nagar Aveli. This right came to be known as
Ramnagar Zakat because it was acquired from the Raja of Ram-
nagar. (Indian Annex C. No. 22.) For the collection of Ramnagar
Zakat the Marathas set up posts inside as well as outside the Par-
gana. (Indian Annex C, Nos. 23 and 24.) In 1759, the Marathas
acquired Pargana Nagar AveIi from theRaja of Ramnagar, together
with aiithe rights therein. (Indian AnnexC. hTo.25.)After acquiring
the Pargana the *ifarathas established Zakat posts at Dadra and
Naroli. Zakat collected at Dadra and Naroli was known as Zakat
of Pargana Nagar Aveli in contradistinction to the older Ramnagar
The Centra1Secretariof the Peshwa.Zakat which continued to be known by that name. (Indian Annex
C. No. 24.)
99. After the assignment of the remaining six villages of the
Mahal of Pargana Nagar Aveli, aiid the Zakat, that is the Zakat of
Dadra and Naroli, in 1785 (see paragraph 95), Ramnagar Zakat
continued to be reserved to the Maratha Government. (Indian
Annex C. No. 24. T)his was collecfed ai the posts inside the Pargana
from al1including the Portugucse.
zoo. There were occasions when the Portuguese either failed to
pay Ramnagar Zakat to the Marathas or themselves collected and
appropriated Ramnagar Zakat due to the Maratha Government.
In 1792, the Zakat coritractor oI the Marathas complained of an
instance of such unauthorized collection. The emiçsary of the
Portuguese accepted the position that tlie Portuguese had no right
to Ramnagar Zakat and agreed to refund to the Maratha Govern-
ment the unauthorized collection. However, the arnount was never
paid. (Indian Annex C. No. 24). A Maratha account paper shows
that in 1794,the Portuguese having wrongly and forcibly collected
Ramnagar Zakat to the extent of Rs. 3929, it was decided to
recover the amount, if necessary by attachment of the revenue
assigned to the Partuguese. (Indiriri Annex C. No. 36.) Accordingly,
the Mahal of Pargana Nagar Aveli was attached by the hlaratha
Governrnent in 1796j97 and a sum of Rs. 787.8.0. ri:covered.
(Indian Annex L. No. 27.)
Ior. The Mahal of the Pargana was again attached in 1798 as
a result of a dispute over the collection of Zakat by the Portuguese
at Fatepur. However, the Portuguese having represented that what
theyhad collected was not Ramnagar Zakat but the ordinary Zakat
which had been assigned to tht:m in 1785, the attachment was
withdrawn. (Indian A~inex C. No. 28.)
102. From Annexes II and 13to Portugal's Mernorial and one
document found in the Maratha papers it appears that in April,
1798, the Maratha Government, for reasons of budget, attached,
as a temporary meascre, al1 its Saranjams, including the Mahal
of Pargana Nagar Aveli. Attachment of the Mahal of this Pargana
was withdrawn in the same year. (Indian Annex C. No. 29 and
paragraph 109 below.)
103. The above thrt:e instances underline the precarious nature
of the interest grantetl to the Portuguese and the fact that the
Marathas had no intention of parting with sovereignty over the
Pargana to the Portuguese, and, in fact, did not do so.
104. This is further borne out: by two documents which have
been found among the Maratha papers. One iç a petition addressed
to the Peshwa by the Zamindars of Pargana Nagar Aveli, corn-
plaining of the difficiilties experienced by them and the other
subjects of the Peshwa as a result of the açsignmentof the Mahal
to the Portuguese. They prayed in the petition that the Mahal38 COUNTER-MEMORIAL OF INDIA (IIIj8)
should be resumed by the Maratha Government, the petitioners
being prepared to pay direct to the Maratha Government the
annual sum of Rs. 12,000 prornised in the Treaty of1779. (Indian
c. NO. 30,)
105. Théother document is a resolution of the Poona Court to
terminate the Saranjam. It reads: "The envoy from the Firangee
of Goa was always accredited to the Sarkar of Poona and the
services of the Sarkar were perforrned by the Government of Goa.
For this the Mahal of Nagar Aveli in the Taluka of Bassein has
been assigned by the Sarkar in Saranjam to the Firangee. Of late
no services to the Sarkar are rendered by the Firangee. And the
envoy does not reside at Poona. Therefore, the Mahal should be
resumed." (Indian Annex C, No. 31.) This document is dated 1817.
In the sarne year, however, the Marathas lost their pouier to the
British, and they were unable to act upon this resolution.
106. It is thus abundantly clear from the Maratha documents
that the Marathas never parted with sovereignty over Pargana
Nagar Aveli, and that the Treaty of 1779 and the connected instru-
ments did not bring about cession of territory to the Portuguese,
nor did they in any way restrict the sovereignty ofthe Marathas
over their territory. On the contrary, whatever rights of the collec-
tion of revenues from certain Maratha vilIages were granted to
the Portuguese, these rights were held during the pleasure of the
Marathasand were subject to temporary or permanent confiscation.
107. Further, neither the text of the Maratha document of
17th December, 1779, nor the Portuguese text of 4th May, 17791
11th January, x780, contained any provision for entry into or
passage over Maratha territory. However, both the texts did
contain a provision imposing upon the Portuguese the obligatidn
to grant to the Marathas free entry into Portuguese territory
through Portuguese ports in India. Thus Article rg in the Portu-
guese text reads:
"Hencefonvard the State shallnot buildany fortificatioinany
of the dominions of Gujrat, Saut, Cantevad, Sorat, and other
places belonging toPandit Pradan, and shall allowfreeentry into
its dependencies through the ancient ports which the State now
possesses."
It is interesting to note that had the documents constituted a
treaty between the parties, and had the treaty corne to be in force
between Britain and Portugal and between India and Portugal,
India would have possessed the right of free entry into Portuguese
ports and possessions in India and of free transit through these
ports and possessions.
108. In paragraph 14 of the Memorial, the Portuguese Govern-
ment has related its account of the installation of the Portuguese
as collectors of revenue in the vilIages of Nagar Aveli assigned to
them in Saranjam. In support it has cited documents in the Por-tuguese language purported to be written by the Portuguese Notary
Public of Daman and styled by him as "Deeds of PossessionJ'.
(Annexes 5 to 7 to the Portugixese illernorial.) According to the
description contained in the first d.ocument (Annexj),the Adminis-
trator of Damangathered the headmen of the Pargana and informed
them of the orders of the Marathas and called upon them to recog-
nize the Queen of Portugal as tht:ir Sovereign. Finally, it is said,
the assembled headmen, who did not have any knowledge of
Portuguese and who were illiterate, were askedto affix their sign
to the same "Deed of Possession", in the Portuguese language. The
photostat copyl of the documerits supplied by the Portuguese
Government contains certain scrawls and marks at the end of the
Portuguese text. Each individual scrawl or mark is underinscribed
in the Portuguese language as being the sign of a headnian. The
Government of India contends that, irrespective of the authenticity
or othenvise of the alleged documents, no such documents drawn
up or ceremonies performed by tlie Portuguese tvithout the partici-
pation or approval of t.he Marathas could have affected the sover-
eign rights of the Mara.thas in the territories of Dadra and Nagar
Aveli, nor could such "Deeds of Possession" drawn up by the
Portuguese add to the limited non-sovereign, revocable interest
granted to tliem by tlie Marathas in Dadra and Nagar Aveli.
109. In paragraph 24 of the Memorial, the Portuguese Govern-
ment invoked "ancient Maratha ordinances" in support of their
claim to "freedom of transit with exemption from duties". In
support of this statement they annexed entries in Portuguese
registers relating to alleged Maratha documents. The alleged
Maratha documents appear to be nothing but ad hoc perrnitsfor
the passage of the produce of Nagar Aveli intended for conçumption
in Daman and orders exempting the Portuguese from demands
in respect of arrears of Maratl-ia Zakat appropriated hy them.
As will be recalled (see paragraphs roo, IOI and 102 above) on
three occasions the Marathas had attached the Saranjam granted
to the Portugueçe as a result of wrongful collection by the Portu-
guese of Zakat due to the Maratha Government. Maratha officials
continued to make dennands fronl the Portuguese inrespect of the
arrears of the wrongfulcoilectionç and often held up and confiscated
Portuguese goods. The Portuguei;e Government deputed an envoy,
Vithal Rao Goraksh, to the Potina Court to obtain redress from
confiscation. At his suit the Jlarathas relaxed their pressure on the
Portuguese and directed that produce of Nagar Aveli may be
allowed to pass "witliout harassrnent on account of arrears of
Zakat". The Government of India submits that, if anything, the
above-mentioned documents (Annexes 19 and 20 to the Portugueçe
Memorial) demonstratt: quite clearly that the power and discretion
to allolv or refuspassage of goods inside and through Nagar Aveli,
as through other parts of Maratha territory, resided solely with
Photostanot reprodut:ed. jhTbyetheRepistry.)the Maratha Government, and that the Marathas did not create,
or intend to create, a right of passage vesting in the Portuguese,
nor did they accept, expressly or impliedly, the existence of any
such right. Further, these documents confirm that what the
Marathas had granted to the Portuguese was the limited, non-
sovereign, revocable riglit to collect revenues in the villages of
Dadra and Nagar Aveli. Thus a translation of a portion in the
Marathi language in the photostat copyl of Annex rg supplied by
the Portuguese Governrnent reads:
"Pargana Nagar AveIihas been assigned to the Firangee ofGoa
by the Sarkar as Saranjamnear Daman."
(Indian Annex E. No. IO.)
110. In paragraph 16 of the Mernorial the Portuguese Govern-
ment stated the existence of a "Convention of 1785 which was
concluded in pursuance of the Treaty of 1779 as a complement
to that treaty, which Convention is conternporaneous with the
handing over of Nagar Aveli (including Dadra)". A document
purporting to be a translation inPortuguese of the "CapituIatians
under which the Sarkar has handed over the Paragana Nagar Aveli
to the Majestic State" is found at Annex 8 to the Portuguese
hlemorial. The Portuguese Government has supplied a photostat
copy of this document. This photostat copyl shoursthat the alleged
"Capitulations" does not contain the seal or signature of any
party; nor is anything stated in the text to indicate the name
of the parties or the date of the execution of the document.
The Government of India has not found any record of this document
in the Maratha archives and it finds it reasonable to surmise that
no such document was executed by the Marathas. However, the
alleged "ConventionJJ itself does not help the Portuguese claim.
On the contrary, its tenns disclose quite cIearly the limited, non-
savereign, revocable nature of the grant to the Portuguese, and
the obligations undertaken by them as Saranjamdars of the Mara-
thas. Under its terms the Portuguese were required to preserve the
Pagodas; to respect the usages and customs and religion of the
inhabitants of the Paragana; not to convert the religion of orphan
children; not to erect a citadelorjortress in theParagana; and to
control the turbulence of the Kolis. These obligations were imposed
by a Sovereign on a Saranjamdar. As has been seen above, in
paragraph 56, a Saranjamdar or Jagidar was required to perform
some service to the Sovereign, the continuation of the Saranjam
or Jagir bcing dependent upon the performance of such service.
It was in fact as a result of the failurc of the Portuguese to perform
these services that the Marathas resolved in 1817 to revoke the
Saranjam.
III. In paragraph 20 of the Mernorial the Portuguese Govern-
ment alleged a right of rnilitary passage from Daman to Nagar
lPhotostatsnot reproduced[Sote by the Registry.] Aveli and cited in support of this claim letters written by a Por-
tuguese officia1toa Maratha officia1in 1798 in which the Portuguese
officia1threatened to march a military contingent to Nagar Aveli
in order to oppose the Maratha guard stationed there. It is a fact
that the Portuguese Governrnent; was very anxious between the
years 1798 and 1802to obtain removal of the attachment or the
constant threat of attachment of the Saranjam and to bririg about
the withdrawal of the special hlaratha guard posted in Nagar Aveli
for the purpose of recovering from the Portuguese mongful Zakat
collectionç. (See paragraphs ~oo t.o102 .) Under instructions from
his Government, the Pcirtuguese t:nvoy to the Poona Court, Vithal
Rao Goraksh, made strenuous efforts to obtain the removal of the
attachment and the withdrawa.1 of the special Maratha guard.
Towards this effort the Portuguese Government supplied him
ample funds with which to bribe and corrupt minor Maratha
officials. He was also instructedtciinform the filarathas that if the
Portuguese requests were not ccirnplied with the Portuguese on
their part would withold supplies of rifles and artillery guns needed
by the Marathas. These facts are disclosed in the correspondence
between Vithal Rao Goraksh, the Portuguese envoy, and Jose
Caetano Pacheco Tavares, a Secretary to the Portuguese Govern-
- ment of Goa, contained in "Agents of Portuguese Diplomacy in
India" by Pissurlencar. (Indian Annex E. No. II.) This corres-
pondence makes it clear that whatever ad hoc grants and conces-
sions were obtained by the Portuguese exempting them from
arrears of Zakat or permitting the passage of produce of Nagar
Aveli without "harassn.ient" by Maratha tax collectors, were not
obtained on the basis of a legal claim discussed at high leveIs of
the Maratha Governmerit. These ad Izocgrants and concessions were
obtained from minor Maratha offii:ialsas a result of bribe or intimi-
dation. The Government of India submits that the lettas cited
by the Portuguese Government at Annexes g, IO, Ir atid 12 to
their Memorial do not in any way point to a right of passage: they
relate to a threat to take military action against the Marathas and
not to any assertion of a legal righl:of military passage over Maratha
territory. In this connection the Government of India would wish
to draw attention to the Treaty of 1741 betuleen the Portuguese
and the Marathas, On,e of the i~rticles of this Treaty expressly
forbade the entry of I'ortuguese armed forces into the territory
of the Marathas and of Maratha armed forces into the territory of
the Portuguese :
"A soldier of theSarkar entering the territory of Daman will do
so only with the permission of the Firangee. If a soldierof the
Firangee wereto enter the territory othe Sarkar, he willdoso only
with the permission of the Saskar. There is no reason to enter
without permission". (Indian .2nnex C. No. 32.)
There is no evidence that thisTrt:aty was not in force between the
Portuguese and the alarathas in 1798. 112. The above facts explain the presence of the Portuguese in
Dadra and Nagar Aveli.During Maratha times they had in Dadra
and Nagar Aveli no status other thaii that of Saranjamdar. If they
came to exercise sovereigntjr in Dadraand Nagar Aveli that was only
in usurpation of the rights of the Marathas and subsequently of the
British. As ~villbe seen belour in paragraphs 114 to 119, after the
termination of Maratha power, the Portuguese continued in Dadra
and Nagar Aveli. They represented to the British in India that
Dadra and Nagar Aveli had been "ceded" to them by the Marathas
in a "treaty of 1780"; and the British Government had no oppor-
tunity of verifying the facts.
113. From this summary relating to Dadra and Nagar Aveli
during the Maratha period the following facts emerge :-
(1) The documents of 4th May, 1779/11th January, 1780, and
17th December, 1779, did not constitute a treaty between the
Marathas and the Portuguese.
(2)These documents did not mention any right of passage
between Daman and the enclaves.
(3) The Marathas never ceded to the Portuguese any part of the
territory of the enclaves.
(4) The Portuguese never received from the Marathas sover-
eignty over any part of the territory of the enclaves.
(5)The rights connected with the enclaves granted by the
Marathas to the Portuguese were merely rights to receive revenue.
(6)These rights were revocable at the will of the Marathas;
(7)These rights were in fact withdrawn by the levy of attach-
ment on no less than three occasions.
(8) On the eve of their conquest by the British the Marathas
had resolved to revoke these rights.
1. Transit of Goods,1818-1879.
114. The Treaty ofPoona, concluded between the British and
the Peshwa on the 13th June, 1817, and the Proclamation of the
11th February, 1818, (Indian Annex E. No. IZ), established British
sovereignty over the territory of the Peshwa adjoining Daman.
In 1818 correspondence began between the Governor of Daman
and the Governor of Bombay about the levying by the British
authorities of cuçtoms duties on products of Nagar Aveli exported
thence to Daman. The correspondence shows the attitude taken up
right at the start of the British occupation of the intervening
territory. The Portuguese claimed exemption from customs duties
on the ground of treaty arrangements allegedly made between thern
and the Peshwa during the Maratha period. They did not suggestthat, apart from treaties, they enjciyed any general right of freedom
of passage or transit between Daman and the enclaves. The British
declined to recognize aiiy obligation arising out of arrangements
between the Portuguese and the Pt:shwa, and regarded the granting
or withholding of the exemption as a matter of policy to be governed
by considerations of local expediei~cy alone.
115. The correspondence began with a letter of 11th Novernber,
18x8, from the Governor of Daman to Sir Evan Nepean, then
Governor of Bombay. (Indian A~inex C. No. 33, 1,p. 295). The
Governor represented that under a "Treaty of 1780" the Marathas
had ceded Nagar Aveli to the Crciwn of Portugal; that since 1780
Nagar Aveli was 'under Portuguese Government ;and that under
the "Treaty" the hlaràthas hacl promised that al1 prciduce of
Nagar Aveli exported tci Daman should be absolutely exempt from
al1duties and taxes; in consequence of breacheç of this provision,
the Peshwa had issued a sanad re-affirming the exemption; an
arrangement had subsequently been made by one of the Maratha
chieftains that, forthe avoidance of misunderstandings, produce of
Nagar Aveli imported for consumption in Daman should be certified
under the hand and seal of the Governor of Daman, but this arrange-
ment had been inconve~iient in practice;and the British collectors
had been levying duties and taxes on al1 articles exported from
Nagar Aveli to Daman, whether certified by the Governor or not.
The Governor asked that the treaties, exempting all articles so
exported from duties and taxes, should be confirmed. In fact, as
wiil be seen from the four texts of the "treaty" (Indian Annex C.
Nos. 2,3, 4 and 5) discussed in pa.ragraphs65 to 83 above, none of
these documents provided for exemption from duties and taxes of
produce of Nagar Aveli exported to Daman. His mention of asanad
was equally inaccurate. He was referring to the document of
26th April, 1799 (Portuguese Anriex No. rg),which isnot a sanad
but a permit issued for a.single occasion. (SeeParagraph 109 above.)
It should also be noted that, even according to the Portuguese, the
system of certification was imposed by a Maratha officia1 and
accepted by the Portugiiese, although the "treaty", according to the
Portuguese, provided no justification for it, and the arrangement
was clearly very unwelcome to them.
116. On 31st December, 1818, the Government of Bombay
referred this letter to the Governor-General in Council at Fort
William. In hiscovering letter (Indian Annex C. No. 33, 1,p. 298),
the Chief Secretary to the Government of Bombay remarked:
"you will be pleased to acquaint Hiç Lordship in Council that
however trifling theremission ofthe duties collected on articles
which donot bear the Governor'sCertificatemay lie-the Governor
in Council lias not tliought himself justified in granting what may
increase hereafter to a considerable extent deeming it also pre-
viously necessary to consult His Lordship in Council on al1 such
arrangements with Foreign European Nations. "The plea set ufl bythe Governorthat the concessionwas originaEly
made by thePoona Governnzentap$ears 20the Governorin Coancilto
beeniitleto littleweigh;and itis considereda qzcestionofPolicy alone
which it is deemedadvisableto refer to the decision of His Lordshi*
in Council."
In reply (Indian Annex C. No. 33,I, p. zgg),the Secretary to the
Government wrote :
"His Excellency the Governor General in Council does not see
any si~fficientreasons, ofa Political nature, to requirea deviation
from the practice hitlierto pursued, and requeststhat His Excellency
the GovernorilzCouncil willdecideon the a$plicatio~of the Governor
ofDamaun with referencetoEocalExpedieacy alone."
117. Sir Evan Nepean wrote to the Governor of Daman on
1st May, 1819 (Indian Annex C. No. 33, 1, p. po), stating that ar-
ticlesgrown and produced in Nagar Aveli and intended for the use of
Daman would be exempt from duties and taxes if accompanied
by a certificate signed by the Governor of Daman or his nominee,
while the local revenue officers would be empowered to open any
packages which they suspected of containing contraband goods.
The Governor of Daman was asked to confirm "a similar privilege",
by which the inhabitants of the Pasgana of Bagwara, in British
territory, north-west of Nagar Aveli, were allowed to take articles
out of Nagar Aveli under notes signed by the Tannadar (a local
police official). Sir Evan Nepean added :
"It will be necessary I should explain to your Worship that on
the cessionof the Novthern Concan liythe EatePeshzoato the British
Governmentno communication was madeto ii of any reservationof
p~ivilegeslo the PortugueseGovernme?zt;and itconsequentlyfollows
fhat any exemption which has beenso grantedcozcldnot be colzsidered
in any deg~ee binding on the British authorztiesbut considering the
amicable relations which happily subsist between the two Govern-
ments your Worship may readily believe that a disposition exists to
guard your wishes at al1times whenever it can be done consistently
with a due attentionta the interests ofmy Hon'ble employers."
118.The Governor of Daman replied on 30th May, 1819. (Indian
Annex C. No. 33, 1, p. 302.) He said that, disregarding arguments
which might have shown that the Treaty of 1780 should be observed
in spite of the silence of the Peshwa, since Sir Evan Nepean had
"so generously been pleased to accede" to his request, hc agreed to
maintain the practice, notwithstanding its impropriety, wheseby
certificates of articlesimported into Daman from Nagar AveIi were
signed by the Governor of Daman and only articles accompanied
by such certificates were allowed to pass free of duty. He agreed that
the revenue officers of both Governments might open the packages
ifthey had cause to suspect the prcsence of contraband goods. He
was giving orders that the privileges grantedby the "Treaty between
the Portuguese and the Marathas" to the inhabitants of the Pargana
of Bagwara should continue to be observed. These privileges were restricted to materials for the construction of the inhabitants'
houses and fuel dunng the rains; :and the Governor asked that the
inhabitants should be provided with certificates that articles taken
from Nagar Aveli were actually .required for the construction or
use of their own houses.Inthe same letter the Governor represented
that "the long quiet and peaceful possession of the Purgunnaha of
Nagur Avely by the cro-wn of.Portugal" was "incontestable proof"
of the "authentic and regularJJ conclusion of the "Treaty". How-
ever, he did not send any text or translation of the allegecltreaty.
Sir Evan Nepean acknowledged this letter on 13th June, 1819
(Indian Annex C. No. 33.1, p.304). expressing satisfaction that "the
concession which has bi:en made to the Portuguese Govei-nment"
had been gratifying tothe Governcirand agreeing that the siiggested
certificates should be issued to the inhabitants of Bagwar:~.
119. It is to be noted that the whole of the correspondence
discussed above related only to produce of Nagar Aveli passing to
Daman, and not to any goods p:sssingin the opposite direction;
that the Portuguese Government relied solely on a misrepresenta-
tion as to the effect and provisions of the "Treaty of 1779" that
no text or translation ofthe alleged treaty was produced to the
British Government; that the British Government refused to
recognize the alleged treaty as im~iosingany obligation upon them;
and that in spite of this refusa1 the Portuguese Government clidnot
attempt to set up anyright existing independently of the alleged
treaty.
120. In the years immediately following this correspondence the
question of these duties was again raised by the Portuguese more
than once, but never with any suggestion that the exemption
depended upon anything but the grace of the British authorities.
Thus, on 9th June, 1823, the Gcrvernor of Daman ~vrote (Indian
Annex C. No. 33,I, p.307),allegirig that duties were being exacted,
and asking the Governor of Bombay to take the matter into his
consideration and "ord.er whatever you may think proper." He
added that he was sure the Governor would "condescend to accede
to sojust a claim." On ~:jthDecember, 1824,the Governor oEDaman
wrote (Indian Annex C.No.33,I, p. 308),complaining that the British
authorities had prohibited the export of provisions, cattle, hay, etc.
from British territory to Daman, and that certain duties were
being levied on provisions, cattle, etc. coming into Daman from the
enclaves. (As appears frorn thi: foregoing, these articles were
exempt from duty only if accompanied by the Governor of Daman's
certificate.)He asked t.he Goveriior of Bombay to remove triese
duties "in consideration of the inciissolubleties which unite the two
Crowns," and added that he would consider this "a very particular
favour conferred on me". The prohibition of the export of provisions
from British territory had been imposed in consequence of a like
prohibition of the exyort of provisions from Portuguese territory,and it was raised when the Portuguese prohibition Ras raised.
Theduties on produce exported from Nagar Aveli were rnaintained.
121. On 12th July, 1833, the British Political Agent at Surat
wrote to the Governor ofDaman (Indian Annex C. No. 33,I, p. 313),
complaining that employees of the Portuguese Government had
carried off some teakwood from British territory without paying
duty. In his reply (Indian Annex C.No. 33,I, p. 314)~the Governor
stated that this timber had been bought for use on a Portuguese
frigate then building at Daman; he alleged that, under "an ancient
agreement", no duty was payable on any goods belonging to the
King of Portugal brought into Daman through the British chowkies
(custorns posts), and none was charged on goods of the East India
Company passing through the Portuguese chowkies. When asked
for evidence of this alleged agreement, the Governor, in his letter
of 11th October, 1833 (Indian Annex C. No. 33,I, p. 320).referred to
the correspondence between Sir Evan Nepean and the Governor of
Daman in 1819 (set out in paragraphs Ir5 to 119 above). The
British PoliticalAgent reported this in a letter of 17th October,
1833 (Indian Annex C. No. 33, 1, p. 317) to the Secretary to the
Govemment of Bombay. He pointed out that .the Governor was
claiming free transit of any goods of the King of Portugal brought
into Daman, alleging that reciprocal freedom of transit through the
Portuguese chowkies was dowed to al1 goods of the Company;
whereas the correspondence cited covered only produce exported
from Nagar Aveli (whoever might be the owner of it), and the
counter-privilege did not refer to property of the Company, but
was confined to timber for building and fuel taken from Nagar
Aveli by inhabitants of Bagwara. The Governor of Bombay in
Council (Indian Annex C. No. 33, 1, p. 321) ultimately directed the
Political Agent to inform the Governor of Daman that the British
Government would adhere strictly to the arrangement of 1819, but
that arrangement had not been infringed by the dernand for duty
on the teakwood, which had not been proved to be produce of
Nagar Aveli.
122. Itis to be observed that in this incident also the Portuguese
authorities relied on nothing but an inaccurate account of earlier
events. Although trying to eçtablish a privilege which was clearly
outside the terms of the arrangement of 1819, they resorted only to
mis-statcments of the scope of that arrangement,and never alleged
the existence of any general right going beyond the terms of that
arrangement.
123. On the 25th Septeinber, 1844the Governor General of Goa
wrote to the Governpr of Bombay, asking that articles exported
from Daman for consumption in Nagar Aveli rnight be free of duty
(Indian Annex E. No. 13, p. 279). Commenting on this request, the
Revenue Comrnissioner of the Northern Division wrote thus to theSecretary to the Government of Bombay on the 31st January 1845
(Indian Annex E. No. 13, p. 281) :
"1 can readily beliave it to be bath inconvenient and unpalatable
to the Government of Daman that there should be any restriction
on the freedom of itstraffic with a detached dependency such as
Nagar Aveli, and .ifit cauldbe relaxedwithout materialrisk to our
revenueitmightbePoliticandcourteous to concedethepoint, if however
this couldnot be dune, itdoesnot a$$ear to me that the Portuguesc
Governmenthas any reasonableground $0expectthat its szlbjectsin
thatdistrict skouldbc $Eacedon a morefavourabLefootin gan oltr
own,witk whomtheylareat $resentin everyres$ecton an eqwality."
The Commissioner thought the concession would involve risk to
the British revenue; and on the 1st hlarch, 1845, the Bombay
Government wrote to the Governor General of Goa that itcould not
be granted (Indian Annex E. No. 13, p. 282).
124. In 1848 the British aztlhorities withdrew the concession .
granted to the Portugziese in 1819, and som aftcr termircated the
arrangement. In May, 1848, the Deputy Collecter of Continental
Customs and Excise submitted a report (Indian Annex C. No. 34,
1,p. ~zz) stating that a privilegegranted to the Governor of Daman
of receiving certain persona1 supplies from Nagar Aveli free of duty
had been grossly abused. On the 10th June, 1848 he wrote again to.
the Secretary to the Government of Bombay, as follows (Indian
Annex C. No. 34, 1,p. 323) :
"In the absences of the Col1ei:tor1 have the honour to submit to.
you that inmy report on Damaun of the 18th ultimo 1 pointed out
the abuse of an indulgence gra~ited to the Governor of Damaun of
having certain supplies passed from Nuggar Haveli to Damaun
through our custom Chokies without paying duty.
"In the report referred to 1 have shown that under thjs pretext
goods have been passed from every direction under passes from the
Governor of Damaun-to large amount and involving a considerable
sacrifice ofRevenue.
"In tlie last year the valuecifthe goods so passed was fifty-five
thousand six hundred and fifty-nine Rupees and one ruina, the
arnount of customs that should have been paid thereoii Rupees.
four thousand and t~vohundred and forty thirteeri annas and four
pies-fortunately this is not a case the proof of which depends on
the validity of an account kept by an inferior carcoon and might
be open to trial-1 have the passes of the Gover~iorof Damaun to,
prove the fact.
"Involving as it did a daily and hourly sacrifice of our Revenue
and considering that. the countenance which has been given to the
çalt smuggling by the Damaun Government to the great injury of
that the abuse ofwiça econcession and favour made in courtesy- and
required instant correction-I directed that no goods shorild be
passed the Damaun Frontier free of duty on any pretext whatever.
"1have given the detail of tliis mattein paras. 17th, 15th, 19th
and 20th of the report above referred to.1 regret however to find 148 COUNTER-MEMORIAL OF INDIA (III58)
have not mentioned that 1 had given the orders immediate effect.
1 trust however Government wili consider me justified in having
done so for the reasons above mentioned."
125. The Governor of Daman reported this (Indian Annex C.
No. 34,I, p. 324)to the British PoliticalAgent atSurat on 20th May,
1848. On 12th Uecember, 1848, the Governor of Daman wrote to
the Governor of Bombay (Indian Annex C.No. 34,I, p. 327), stating
that duty was being demanded on fowls, butter, etc., brought in
for his own table; he enquired whether this was being done by the
order of the Governor of Bombay, "in which case", lie added,
"1 shall rest satisfied on the point". The Revenue Commissioner of
the Northern Division was then asked to report on the whole sub-
ject of exemption from duty of produce of Nagar Aveli passing
through British territory, and submitted a report dated 19th April,
1849 (Indian Annex C. No. 34, 1, p. 328). Having referred to the
arrangement of 1819, he said:
"..it is,1 apprehend, conclztsive HzsElccellency theGovernor O#
Dernam (whn by Ais lettetoMr. Andrews declined an exfilanation)
lias abused the ind~lgenceof the Bombay Governmeitt,and as no
necessity in the present day can exist of allowing the inhabitants
of Bagwara the privilege of getting their building timber and fuel
from the Nuggur Havellee duty free, an arrangement which Mr.
Bettington shows in the 3rd para. of his letter to hlr. Secretary
Lumsden No. 252 of the 10th June last, was attended with a loss of
customs dues to Government of Rupees Four thousand, two hun-
dred and forty, annas thirteen and pies four, this discussion, I
rcspectfully venture to submit might be brought to a close by His
Excellency the Governor of Demaun being informed, that as it had
been discovered numerous abuses (probably on both sides), had
taken place, in defrauding the Customs, the agreement entered
into in A.D. 1819,of permitting the produce of Nuggur Havailee to
pass duty free over the British frontier into Demaun, upon the
Demaun Government allowing Building Timber and fuel to be
similarly exported from Nuggur HavaiIee into Bugwara, was to
cease, and that henceforth the British Government would not
expect the continuance of this indulgence or grant its equivalent
tothe state of Demaun."
He did recommend, however, that articles for the Governor of
Daman's ownhousehold should be passed free of duty on production
of the Governor's certificate. On 25th May, 1849, the British
Political Agent at Surat wrote to the Governor of Damaun (Indian
Annex C. No. 34, 1, p.331)i~ nforming him of the decision of the
Governor of Bombay that, "as ithas been discovered that numerous
abuses (probably on both sides) have taken place", the arrange-
ment of 1819 was to cease; but al1 articles for the Governor's
private consumption were to be passed free of duty on production
of his certificate.
126. The arrulzgenzent O/r81g was termiaated because it had been
abused.From the joUiowinguccoztnf.ofsubsequent events %twill appear lhat therewereotheroccasionson whichthe British azcthoritiesgrartted
exemptions /rom dztty tu yoodspassing /rom Nagar Aveli to .Daman,
and in practically every cme the exemptions led to abuseand su had
50 be withdrawn. The development of these abuses illustrates the
absolute necessity that any special arrangement either for passage
of persons or for transit of goods to an enclavehould be based on
express and precise agreement between the authorities concerned
upon practical measures for the prevention of abuse.
127. It is very significant that -this decision of the Govt:rnment
of Bombay to terminate the arrangement of 1819 appears to have
been accepted in silenceby the Portuguese authorities. They made
no protest or cornplaint, and didnot allege that any right enjoyed
by the Portuguese Government waç being infringed. They tthzts
acqzciescedin the view i'aken by ihe British Gove~lzment,that the
transit of any goods ozrerBritis ihrritory betzeieenDaman and the
enclaveswasa matter lying entirely within the domestic jurz'sdiction
ofthe British Government, and to be controlled according ta thal
Government's$oEicy.
128. In 1859 the matter of these duties was again raised by the
Portuguese. Commissioners appointed by the British and Portu-
guese Governments were engaged in settling certain questions in
issue between the two Governments concerning the boundaries of
the Portuguese territories inIndia. On 23rd April, 1859 he Portu-
guese Commissioner, Senhor Cunha Rivara, wrote to the Govern-
ment of Bombay (Indian Annex C. No. 35,I,p. 332), stating that, as
the Portuguese Government hacl allowed free transit through
Portuguese territory to al1articles required for the British railway
works, it appeared to them just "that there would be reciprocity
on the side of the British" and duties should not be enforced on
produce of Nagar Aveli ~iassingthrough British territory to .Daman.
(On this occasion, as on al1 occasions, the duties in question were
export duties levied by the British on the Daman border. No
custorns barrier existed round the borders of Nagar Aveli, and no
import duty was levied by the British on goods leaving the enclaves.)
The Government of Bombay called for a report on the subject,
and the British Comrnissioner, Colonel Pope, submitted a report
on 23rd June, 1859 (Indian Anne:[ C: No. 35, 1,p. 334, enclosing
with it a memorandum of the 26th May by Senhor Cunha Rivara.
In this memorandum (1-ndianAnnex C. No, 35, 1, p. 344). Senhor
Cunha Rivara referred to the "Tre;ity o1779" between the Peshwa
and the Portuguese. He wrote:
"That Treaty contains a clause which establishes thi: widest
exemption and the freedom of trade between the Portugiieseand
Maratha dominions. After somt: time certain doubts and contro-
versies having been raised about the payment of transit duties on
cornmodities produced inthe said Pragana, and transported to the
city of Daman, crossirtgthterritoriwhichremained in the posses-
sion of the Peshwa, and which are intermediary to that Pragana and to the city of Daman, the Peshwa, by his Sanads of 26th April,
1799, directed that the paddy, teakwood, and any other things
which the Portuguese rnight bring from Pragana to' Daman, by
water or land routes, shouldbe allowed free passage without pay-
ment of any duties, in accordance with the procedure observed
sinceold times, that is, sincethe Treaty; and thuswas observed."
He also referred to the arrangement of 1819 ,alling ita pact, the
correspondence of 1833 and the withdrawal of the concession in
1848. He then went on to express doubt whether the dlegations
of abuse made by the British in 1848 had been well founded. He
said the Portuguese Government exempted from duty on transit
through Portuguese territory al1 alcoholic drinks for consumption
in British territory and al1 British products and manufactured
goods, and had recently allowed free transit to materiais, owned
privately and not by the British Government, for railways and
tele-ra-hs. He concluded :
"When, therefore, it appearcd that things should have been so
arranged as todo justice to us, and to establish a wellset reciprocity
regarding exemption from transit duties,it is now a month more
or less that an unexpected increase in the same duties has been
introduced which has aggravated the situation and redoubled the
oppression ...
In view of what has been stated, my Government hopes that
the British Government will, not only in view of the spirit of
alliance and friendship which binds both the Nations, but also in
view of their infallible justice, restore the former systern of free
transitand exemption fromduties, which was observed up to 1848."
It is to be noted that Senhor Cunha Rivara was guiIty of a
number of tendentious inaccuracies in his account of these trans-
actions. His assertion that the "Treaty of 1779" between the
Peshwa and the Portuguese contained a clause establishing 'the
widest exemption andthe freedom of trade' was, as has been seen,
quite groundless. He was similarly inaccurate in calling the permit
of 1799 (Portuguese Annex No. 19, mentioned in paragraphs 109
and 115 above) a sanad, and the arrangement of 1819 (see para-
graphs 117 and 118 above) a pact. Nevertheless, in spite of this
obvious attempt to attribute tothe earlier arrangements a binding
character dich they did not in fact possess, Senhor Kivara did
got venture to claim free transit of goods through British territory
as of right. This is clear from the concluding words of his memo-
randum, quoted above.
129. Commenting onthis memorandum in his report of 23rd June,
1859 (Indian Annex C, No. 35, 1, p. 338) Colonel Pope remarked:
"1 do not suppose that the right of the British Government to
levy duties on goods belonging to a foreign State, passing through
its territories, can be denied, though the yolicy of doing cspe-
ciaIly considering the liberal conduct of the Portuguese Govern-
ment ...,may be worthy of the consideration of Goverliment .. ."
"But as..Governrnentin the event of its seeing fit now to revert COUNTER-MEMORIAI, OF INDIA (III58) 51
to the agreement on the subject:of theduties under consideration,
made on the 1st May, 18x9a ,nd confirmed on the 12th November,
1833 (Vide paras. 7 and II of this report), would not probably
abandon its right to act on any future occasion asit might see fit,
1 submit that such a settlement of thequestion could not bc con-
sidered final."
Colonel Pope suggested that the best permanent settlernent of the
question would be by an exchange of territory, giving the Portu-
guese a strip of territory to form a corridor between Nagar Aveli
and Daman. The Governor-General of Goa wrote to the Governor
of Bombay on 12th September, 1859, endorsing this suggestion
(Indian Annex C. No. 33, 1, p. 3413) ;but on 28th September, 1860,
the Governor of Bombay answeired that, after full enquiry and
consideration, the cession of any British territory had been found
to be impracticable. (InclianAnnex C.No. 35,I,p.355.) In November
1861, after correspondence with 1;heSecretary of State for India. '
the Portuguese request was granted and produce of Nagar Aveli
was allowed to pass through British territory free of duty for use
in Daman, if accornpanied by a pass from the Governor of Daman.
(Indian Annex C. No. 36.)
130.After 1861, the position of goods in transit between the
Portuguese terntories and that of duty levied on those gocids seem
not to have been alterecl until the conclusion of the Treaty of 1878,
mentioned helow in paragraph 137.
131. It is important to observe once more the presuppositions
lvhich governed the conduct of both sides in their dealings just
described. The Portugriese had ljeen anxious in 18x9 to obtain,
in 1848 to preserve, and in 1859 to regain a valuable exemption
from duty. ilihile they did appeal to the arrangements which they
had made with the Marathas, the appeals consister3 chiefly of mis-
statements of the effect ofthose transactions; and they never made
any attempt to insist when the British Government declined to
regard as binding arrangements made between the Marathas and
the Portuguese. Apart from these appeals, thePortuguese argtiments
were based on reci$rociity, the fritrndship between the two couiztries
and the British Government'ssens(! O/ justice. They never claimed to
be entitbedto Jreedomof transit betweentheir territories. Thtzy never
appealed to any custoin, or general right existing by treaty, or
principle of international law, but regarded the imposition and
raising of the dutiesas lylng entirely within the power and domestic
jurisdiction of the Briti~~hGovernrnent. Accordingly, when, in 1849,
the British Government withdre~v the concession granted in 1819,
the Portuguese Government acquiesced in silence (see paragraphs
124 to 127 above). The British Gove~itment,on tizeir side, also
regarded theimposition of these dzdtiesas a purely domestic matter,
zerhichwas not agected by any considerations of treaty, custom op.law.
. but might be handled purely on co,zsiderations O/ fiolicy. Right from
the outset they consistently refused to recognise any obligation52 COUNTER-MEMORIAL OF INDIA (III58)
arising from any treaty or arrangement made by the Portuguese
with the Rlarathas.
II. Passage andEntry ofSoldiers and Police, 1818-1879.
132. As with the transit of goods, so with the passage of soldiers.
and police, there is no evidence that during this period, from the
origin of British sovereignty in181711818 to the conclusion of the
Treaty of 1878,either Government ever clairned any right of passage
through the territory of the other. Facilities seem to have been
granted or restrictions enforced simply on the basis of reciprocity,
and there is no evidence that passage of Portuguese troops or police
over the territory intervening between Daman and the enclaves
was treated in any different way from passage over other British
territory. There are three incidents which show that entry of
soldiers and police was regarded as lying entirely within the control
of the Government of the territory to be traversed, and no reliance
was placed upon any right alleged to exist by treaty, custom or
any principle of law.
133.As regards entry for the arrest of criminals, this is clearly
shown by an incident of 1851. The British authorities in Surat
asked (Indian Annex C. No. 37) the Governor ofDamaii to allow
British police to enter Portuguese villages in order to arrest persons
who had committed offenccs in British territory. In his reply
(Indian Annex C. No. 37). dated 17th June, 1851, the Governor
declined to allow this, butsaid that the Portuguese police would,
at the request of the British Government, arrest such persons; and
in the same letter the Governor asked the British authorities to
arrest a certain person who was wanted by the Judge of Daman
but was apparently in British territory.
134. In1857, during the Mutiny inBritish India, the Portuguese
Government allowed a detachment of British troops to pass through
Goa on their way to the Southern Maratha district. The Governor-
General, in s letter of 27th November, 1857 (Indian Annex C.
No. 38) to the Governor-General of Portuguese India, expressed the
thanks of the British Government "for the ready and cordial
assistance affordedby yourself, and the authorities under you".
135. In 1859 an incident arose in connection with the despatch
of two Portuguese sepoys from Daman to Bassein, to escort thence
a Portuguese judge. The British police at Dahanu deprived the
sepoys of theirbayonets (apparently the only weapons they carried).
The Governor-General of Goa, on 16th 1859, protested to the
Governor of Bombay against the disarming of the sepoys in spite of
their having produced Government passes (Indian Annex C.
So. 39)H .e based his protest on the ground of reciprocity, claiming
that English soldiers carrying arms were alloweto pass unmdested
in Portuguese territory. The Governor-General mentioned, as an
"additional circurnstance" at Daman, the existence of Portuguese COUNTER-MEMORI AFLINDIA (ITI58) 53
villages surrounded by British territory, but did not attempt to
found any special right upon it. 'The Governor of Bombay apo-
logised (Indian Annex C. No. 39) for the "inadvertence" through
which the arms had been detained.
736. From these three incidents it is irripossible to dediice that
either Government claimed any right of entry into,or passage over,
the territory of the other, or concecled to the other Government any
right of entry into, orp:lssage over, its own territory. When either
Government did allow passage to the troops or police of the other,
this waç done as a conccssioii and a favour, and on the basis of
reciprocity. No appeal was made to treaty, custom or any principle
of law. The Portuguese Government, even when drawing attention
to the peculiar position of Dadra and Nagar hveli, did ncit found
upon the position of these enclaves any claim to a special right.
III. The Treaty ofCommercealcdExtradition, 1879-1892.
137. In 1878 Great Britain and Portugal concluded a Treaty of
Commerce andExtradition for their Indian possessions. The negoti-
ations which led to thiç treaty sprang from the abrogation by the
British Government of what were lrnown as the "firrnan privileges".
In 1714 the Moghul Emperor Ferokhsair issued a firman under
which Portuguese goods arriving in Portuguese vessels at Surat
were subject to duty at a rate of only z+%, the normal rate of
duty being 5 %. Until 1868 the volume of Portuguese commerce at
Surat was negligible, and the British authorities did not interfere
with these firman privileges. In r869, however, the poçition was
entirely changed by the appearance of a new trade. This was the
trade in Portuguese wine. Tlic ivine was taken out of bond at
Bombay, shipped to Ilaman, and taken thence in Portuguese
coastingcraft to Surat. This trade grelv considerably, and in conse-
quence the observation of the finnan privileges began to cause
serious loss to the British revenue. In 1872, therefore, the Govern-
ment of Bombay put an end to che firman privileges. In the face
of loud protests by the Pordugz~eC;overnmenlagainst this ac:tiothe
British Government mai.ntained thlst the firman contained nothingto
imply that the $rzvilege was gra~ztedin perpeitiify; firmu?ts were
revucable by the Moghul Governmertt, and, therefore, by itss1~-
cessor, the British Government; Lo~gcontinuance of the grantdid not
convert a matter offavoztr into a nzntteof right; and the abrogation
of the $riviEegewas noi:contrary foany treaty obligation. (Indian
Annex E. No. 14.)The British Government therefore refused to
consider the Portuguese claim for compensation for the with-
drawal of the firman privileges. l'his is another illustration of the
attitude of the British Government towards arrangements which
had formerly prevailed between their predecessors and the Portu-
guese. While willing to abide by such arrangements so long as it
was convenient for them to do so, the British refused to regard
these arrangements as jmposing upon them any obligation. 138.The negotiations consequent upon the suspension of the
firman privileges dragged on for a number of years. Eventually the
British and -Portuguese Governments reached agreement on the
following principles:
(i) the firman privileges should be abolished;
(ii) there should be reciprocal freedom of commerce, navi-
gation and transit between all British and Portuguese
territory inIndia;
(iii) the two Governments should CO-operate in building a rail-
way from the Portuguese port of Rlarmagao through Goa
to the frontier of British India;
(iv) there should be mutual exemptions from, and reductions
of, import duties.
Theçe principles were accordingly embodied in the Treaty of 1878.
139-Articles 1 and II of this Treaty of 1878 (Indian Annex C.
No. 40) gave complete freedom of commerce, navigation, transit,
residence, possession of property and trading to the subjects of
either Government within the dominions of the other, with the
same restrictions and laws only as were applicable to nationals.
Article VI1 abolished al1 customs duties on imports and exports
levied on the frontier lines between the Indian possessions of
Britain and Portugal. The Treaty also provided for the extension
of this article touch native statesas the Governor-General might
declare to be entitled to the same Customs privileges as British
India. ArticIe V provided for a uniform monetary system, and a
separate convention to this effect was signed between the two
powers. By Article XIV the Portuguese Government undertook to
prohibit the cultivation and export of opium except on account of
the British Indian Government. Article XII gave to the Govern-
ment of India the exclusive privilege of replating or undertaking
the manufacture and sale of salt in Portuguese possessions. From
the fiscal point of view this articlewas considered important for
the British. Goa and Daman possess special natural facilities for
producing ses salt, and the smuggling of salt into Tndian territory
meant an annual loss of duty between -&o,oooand £75,000. Similar-
ly, Article XII1 provided for the introduction into Portuguese
India of the British system of excise on spirituous liquors. The
British Government on its part agreed to pay annually 400,ooo
rupees to the Portuguese Government. By Article VI the British
Government undertook to provide "al1 usual and reasonable facili-
ties for the making and working of a railway frorn the port of
Marmagaum to the town of New Hubli". In return the Government
of India secured the rights of conveyance on the whole line from
hfarmagao to New Hubli, "upon terms sirnilar to those on which
the same are conveyed upon the guaranteed railways in India, of
Her Rlajesty's mails, post officeofficials, police, artisans and stores, COUNTER-MEMORIAL. OF INDI (III58) 55
and also (subject in thi: case of transit through Hiç Most Faithful
Majesty's territory to the provisions of article XVIII of this
Treaty) ofher troops, arms and munitions of war".
140. Article XVIII provided that the revenue, magisterial and
police authorities of th(: Indian clominioils of either party might
enter the dominions cif the otlier in pursuit of criminalç and
smugglers. The Article read:
"The High Contracting Parties mutually agree to adopt in their
respective territories suitable measures for the prevention and
punishment of smuggling; or other evasion of the spirit of the
arrangements relatirig to navigation, cuçtoms, saIt, spirituous
liquors and toddy, arid opium effected by this Treaty.
The revenue, magisterial and police authorities of the Indian
dominions ofthe High Contracting Parties shall cordially co-operate
with each other for the maintenance, on the common lines of traffic
and elsewhere, of pei'fect security of perçons and property; and in
the pursuit of criminals and persons engaged in smuggling and
contraband practices, the said authoritieof the one High Contract-
ing Party may cross the frontier and enter the dominioris of the
other High Contracting Party: Provided that in such dominions
they shall act in accordance with the local lawsand the provisions
of this Treaty.
"The armed forces of one of the two High Contracting Parties
shallnot cnter the Indian dominions of the other, except for the
purposes specified in former Treaties, for the rendering of mutual
assistance as provided forin the present Treaty, or exceptin conse-
querice ofa formal request made by the party desiring such entry
toThe exportation of'arms, amrnunition or military stores from the
Indian dominions of one of the High Contracting Parties into those
ofthe othcr shall not be permitted, except with the consent of, and
under rules approved of by, the latter. The Governments of British
India and Portugueije India sliall CO-operate to cnforce al1 such
rules as are herein contempiated.
The Governor-General of British India will from time to time
communicate to the Governor-General of Portuguese Inilia a list
of the Kative States to be placed, in respect of arms, ammunition
and military stores, upon the s;ime footing asBritish India."
141. By Article XIX the parties engaged to enter into a separate
Convention governing extradition. Article XXII provided that the
Treaty should corne into force three months after the exchange
of ratifications, and rernain in force fora period of twelve years and
then, unlesç terminated by notice: given by one party to the other
twelve months before the expir:ition' of that peiiod, foi- further
successive periods of twelve years until so terminated.
142. The Treaty carne into force on 15 January 188ci.There-
after it governed al1 rnatters of passage of persons and transit of
goods between British and Portugucse India until January, 1892.Between 1879 and 1892, therefore, the arrangements concerning
passage and transit between Daman and the enclaves were purely
conventional, being governed entirely by this Treaty. This applied
to the passage of al1 persons, whether military, police or civilian,
and the transit of al1 goods. In particular, soldiers or police of one
country could enter the territory of the other only in accordance
with Article XVIII .
143. The foregoing summary shows that the Treaty was founded
entirely on the basis of reciprocity. Its provisions contain no hint
that either party claimed, whether byearlieragreement or by custom
or by general pnnciples of law, any unilateral or absolute right
of transit or of passage through the territory of the other.
IV. Transit of Goods, 1892-1947.
144. The Treaty of 1878 expired in January, 1892, the British
Government having previously given notice to terminate it under
Article XXII. The Portuguese Government then contended that
either the firman privileges should be restored or they should
receive compensation for the loss ofthose privileges, but the British
Government refused firmly to consider either request. Another
consequence of the termination of the Treaty was that the question
of the exaction of customs duties on goods passing between Daman
and Nagar Aveli again arose. The Governor-General of Portuguese
India wrote to the Governor of Bombay on 27th May, 1892 (Indian
Annex C.No. 41,I ,.378), stating that, before the Treaty,transiof
goods between the two districts had been free, subject only to the
issue of passes by the Portuguese authorities, but since the expirat-
ion of the Treaty, free transit had not been allowed at the British
fiscal posts. He went on:-
that Your ExcellencyovwiIl be so good as to issue the necessaryst
instructions with a view to al1 products leaving any part of the
Portuguese territory of Daman, and passing from one district to
the other, being allowed transit free duty in British territoror
territory belongingto the Raja of Dharampur.
As regards the Portuguese Authorities, 1 assure Your Excellency
that this condescensionon the part of the British Authoritieswill
be duly returned by an equal exemption from duty of products
passing from British territory or territory under British protection."
The Governor-General added that his request was justifiable
because of the practice followed before the Treaty, and because
goods from British posts passing over the Marmagao railway were
not charged customs dues by the Portuguese. In this letter the
Portuguese request was once more put forward as a request for a
favour to be enjoyed reciprocally by both Governments, not as a
demand for the recognition of a right, COUNTER-MEBIORIAI. OF INDIA (III58) 57
145. The Commissioner of Customs, Salt, Opium and Abkari
at Bombay pointed out, in a memorandum of 3rd August, 1892
(Indian Annex C. No. 41, 1,p. 379), that the Governor-General's
account of the practice followed before the Treaty was inaccurate.
The exemption had been limited tn produce of Nagar Aveli brought
under the Governor's pass to Daman and no exemption had ever
been allowed to goods passing from Daman to Nagar Haveli. He
went on :-
"It willthus beseen that the account givenby His Excellencythe
Governor-General of the practice in vogue before the Treaty is
incorrect in sorne important particulars and the general and unre-
stricted exemption henow asks for would go far beyond any pre-
vious concessions regarding the traffic between Nagar Aveli and
Daman.
Undersigned would strongly deprecate any exemption fronl duty
being now granted to goods fonvarded under the Governor's passes
from Daman to Nagar Haveli as abuses which it ivould practicaliy
be impossible to control would inevitably sprinup.
As regards the exemption from export duty of rice, the produce
of Nagar Haveli wht:n taken to Daman for consumption in that
place ...So far as undersigned it;aware there are no specialgrounds
for relinquishing without equivalent the revenue which will he
sacrificedif the exemption asked foisgranted,and past experience
in connection with the abolished firman privilegesas wellas with
the Anjediva and Nagar Haveli exemption from duty goes to
show that arrangements with the Portuguese of the kind proposed
by the Governor-General invariably lead to complications and loss
of revenue."
The remission of Portuguese duty on goods passing from British
posts over the Marmagao Railway was, the Commissioner said,
dictated by sclf-interest:, as the application of the tariff would at
once have put a stop to al1 goods traffic on the West of Indian
Portuguese Guaranteed Railway. On z~st February, r893, the
Government of Bombay resolveci (Indian Annex C. No. 41, 1,
p. 381) :-
"The Governor-Gerieralof Postuguese India should be informed
inreply to hiçletter No. 58,dated the 27th May,1892,that the Goa
Treaty of 1878 having lapsed, this Government is prepared to
restore the stntfd~ILOante and allow rice, the produceof Nagar
tion or for export, as was done before the Treaty came into force,
subject tasuch precautions forits identification as really the pro-
duce of Portuguese territory as may from time to time be found
necesçary. Beyond this concession, this Government regrets that it
cannot go."
146. On 29th January, 1895, the acting Collector ofSalt Revenue
wrote to the Comrnissioner of Customs, Salt, Opium and Abkari
(Indian Anncx C. No. 42, 1,p. 388)reporting that it had long been
suspected that rice grown in British villages was being fraudulently
exported to Daman free of dut? under cover of Portuguesc passes,and. a case had recèntly occurred in which two cart loads of rice,
certified by the administrator of Nagar Aveli as heing produce of
Nagar Aveli, had been proved to have corne from British territory.
The acting Collector did not blame the administrat or :theconcession
wasnecessarily attended by fraud, and he could,suggest no precaution
by which it could be prevented. Accordingly, he concluded:
"As matters now stand not only isthe British Revenue defrauded
of a considerable surn every year, but the traders and owners of
vesselin Daman are subsidised to the detriment of those living in
British territory.
Now that the worthlessness of the certificates grantedby the
Portuguese Authorities has been so fully demonstrated, I trust that
Government will see fit to withdraw the concession."
The Commissioner wrote (Indian Annex C. No. 42, 1, p. 388) on
8th March, 1895, to the Chief Secretar~. of the Revenue Department
of the Government of Bombay, endorsing this suggestion and
stating there couId be no reasonable doubt that the concession was
abused and much British rice evaded dutyby passing as Portuguese
rice. In support of this he quoted figures supplied by the Acting
Collector. On ~1st August, 1895, the acting Chief Secretary to the
Government of Bombay wrote (Indian Annex C.No. 42, 1, p. 387)
to the Government of India, stating that the Bombay Government
proposed to accept the Commissioner's suggestion and terminate
the concession, but thought it advisable to enquire if the Govern-
ment of India hadany objection to this course. In reply, the Assistant
Secretary to the Government of.India wrote, on 29th October, 1895
(Indian Annex C. No. 42, 1,p. 390):
"1am directed to acknowledgethe receipt ofyour letter N5224,
dated the 21st August, 1895, relative to the passage free of duty
into Daman, through intervening British territory, of rice produced
in the Portuguese district of Nagar Haveli.
It appears clear that the concession has beeabused, and f am
to request that, with the permissionof His Excellency the Governor,
the position may be explained to the Government of Portugueçe
India, who should be informed that any practical suggestion for
the prevention of the abuse will receive careful consideration, but
that meanwhile, to prevent loss to British Revenue, the concession
will be provisionally withdrawn one month after the date of the
letter."
The Portuguese Authorities were apparently unable to make any
practical suggestion for prevention of the abuse, for the concession
was not restored.
147. On a number of occasions after 189.5,the Portugueseauthori-
ties tried to get this concession renewed. On 2nd Seplember, 1899,
the Governor-General of Portuguese India wrote (Indian Annex C.
No. 43, 1,p. 393) to the Governor of Bombay (Lord Sandhurst),
pleading that, as the inhabitants of Daman had been reduced by plague and drought to "a very miserable condition", products of
Nagar Aveli, except country liquor, should be allowed to be carried
to Daman and vice versa free from duties. He suggested various
precautions which might.be taken to prevent frauds, and remarked
that the Portuguese Government did not levy any tax on goods
passing through Marmagao harbour and the Goa territory either
to or from British districts. On this Ietter, the Collector of Salt
Revenue commented (Indian Anaex C. No. 43, 1, p. 394) on 11th
,October, 1899,that impcirts into Nagar Aveli and exports therefrom
were absolutely unrestricted, and, in respect of exports to Daman,
Nagar Aveli was treated exactly as though it was British territory,
Al1 trade between the two districts was, therefore, free already,
.except that in rice. As to this, he added: ,
"When Customs posts were established on the Daman frontier,
privilegeswere undei.certain conditions accorded to ricethe pro-
duce of Nagar Haveli exported to Daman. It wâs found however
that the concessionwaç abused, and after a peculiarly gross case of
fraud had been brought to light,itwas withdrawn by the Govern-
ment of lndia (Gover~imentResnlution No. 7831 ofthe 17thDecem-
ber 1895, Political Liepartment).Mr. Jenkins cannot recommend
thatthe concession should be rttnewed."
148. The Acting Cornrnissioner of ~ustorns, ~alt; Opium and
Abkari concurred in this view. (Indian Annex C, No. 43, 1, p. 395.)
On 6th March, 1900, Lord Northcote having meanwhile succeeded
Lord Sandhurst as Governor of Bombay, the Governor-General of
Portuguese India renewed his recluest. (Indian Annex C. No. 43,
1,p. 396.)He said it seemed to him unfair that rice produced in Nagar
Aveli should be allowed to be exported free into British territory,
but should be liable to British taxes when intended for Portuguese
territory, and referred again to the freedom from duty of traffic
passing over the Riarmagao railway. He asked the Governor, "if it
should be impossible to dlow free transit to all goods between
Nagar Aveli and Daman and vice versaJ', to allow rice produced in
Nagar Aveli and exported to Daman, and fish exported from Daman
to Nagar Aveli, to pass free. Commenting on this request on 29th
April, 1900 (Indian Annex C. No. 43, 1, p. 3981,the Collector of Salt
Revenue said it had been provcd that fraud was "the necessary
concomitant" of any exemption from duty ofrice purporting to be
produce of Nagar Aveli. He described how, between 1893 and 18gj,
large quantities of rice grown in British districts had been exported
"under fraudulent certificates obtained from the Portuguese
authorities". Free and twzrestrictedtra@c with British territory was,
he snid, far moye impclrtant to Aragar AveEithan expori of rice to
Daman and receipt O/goods from Daman, free of dztty. It wasun-
reasonable to expect thatNagar Aveli, whde treated for purposes of
British customs rasa British district, shouldreceivespecial co~zcessions
as beingPart of Portugzlc!seIndia.On zrst July, 1900, the Governorof Bombay wrote to the Governor-General of Portuguese India
(Indian Annex C. No. 43, 1,p. 399),conveying his decision thus:
.:'I have the honour to acknowledge the receipt of the letter
No. 26 dated the 6th March, rgoo, from your Excellency's pre-
decessor, regarding the proposa1io allow rice to be exported from
Nagar HaveIi into Daman free of duty, and in reply to Saythat my
Government regret that they are unable, after a careful considera-
tion of the question, ta grant the concession asked for as past
experience has shown that it is sure to be abused."
149. The subject was raised again in 1906, in the course of
negotiations for the prevention of the smuggling of liquor from
Daman intothe adjoining British districts. The British Governrnent
had asked the Portuguese Government to fix a minimum price for
the sale of liquor, and to limit the number of liquor shops, in these
territories. The Portuguese Government offered to do so if, as a
compensation for the loss of revenue, the British Government
would permit free passage through their territory of salt,nce and
other dutiable produets from Daman to Nagar Aveli and vice versa.
The Government of India submitted this proposa1 to the Govern-
ment of Bombay. In his answer, dated 1st November, 1906(Indian
Annex C. No. 44, 1, p. qro), the Secretary to the Government of
Bombay wrote that this particular form of compensation, "in the
opinion of the Governor in Council, should most emphatically not
be granted". Regarding rice, he referred to the withdrawal of the
concession in 1895, and added that, although every effort had been
made, it had never been possible to guard the concession from
abuse. The Government of India, accordingly, wrote, in a despatch
of 28th February, 1907, to the Secretary of State for India (Indian
Annex C. No. 44, 1, p.4x4):
"Weare entireiy opposed to the acceptance of the proposa1of the
Portuguese Government thrtt, as a quid pro quo for their meeting
our wishes in respect to their liquor arrangements in Daman and
Nagar Aveli, we should allow the free transit of rice and other
articlesbetween these districts. As ispointed out by the Local
Government, such transit would, in the caseof saltand rice, inevi-
tably degenerate, as formerly, into unauthorised free import of these
articles into British territory."
(The last sentence quoted is not absolutely clearly expressed. The
import of salt from Daman into British territory was totally
prohibited (çee paragraph 153) ; but, as regards rice, import from
Nagar Aveli into British territory was never subject to any duty
or restriction, and the freedom which the Portuguese were seeking
was freedom from British export duties on the Daman frontier.
This letter of the Government of India does, however, emphasize
once more that fraud and abuse appeared inevitably to accompanp
any exemption from duty which the British might allow.) 150. Strenuous efforts to obtain the renewal of the concession
were made by vanous Portuguese authorities between 1933 and
1935. On 15th December, 1933, the Portuguese Consul-General at
Bombay wrote (Indian Annex C. No. 45, 1, p. 417) to tlie Chief
Secretary of the Politicd and Reforms Department of the Govern-
ment of Bombay, pointing out that rice grown in Nagar Aveli
could not enter Daman \vithout passing through British territory,
and, alleging (wrongly, as it proved) that goods from British
territory passing in transit through the Dabel district of Daman
were exempted from customs duty. He asked that rice despatched
from Nagar Aveli to Daman might be allowed free transit. The
Chief Secretary wrote in reply on 15th March, 1934 (India11Annex
C.No. 45,I, p. 422). He referred to the withdrawal of the concession
in 1895 and the correspondence of rgoo, and stated:
andFinview of the fact that the conditions which necessitated the
withdrawal of the concessionhave not changea, the Governor in
Councilregrets that he isunable to permit free transit to rice
despatched from Nagar-AvelitciDaman."
151. On 3rd August, 1934 the Governor of Daman renewed the
request, in a"private and persona.1"letter to the Collector of Surat
(Indian Annex C. No. 45,I p. 425).He suggested certain safeguards
which might prevent frauds, and hoped that "the ever proved
good sense and spirit of justice of the British administration"
would lead them to grant Iiis request, thus easing a little the
"enormous difficulties" of the popiilation of Daman. The Governor's
suggestions were carefully considered, but on 10th January, 1935
the Collector was instructed (Indian Annex C. No. 45, 1,p.429) to
inform him that the Gclvernment of Bombay could not reconsider
their previous decision. A third attempt was made on 6th June,
1935, when the Governor-General of Portuguese India made the
same request to the G.overnment of Bombay (Indian Annex C.
Xo. 45, 1, p. 432)) expressing the liope that it might be "considered
just and deserving of consideration". The reply, dated 28th June,
1935 (Indian Annex C. .No. 45, 1,p. 433), stated that the Governor
in Council regretted thatitwas not possible to allow the concession
for the reasons set out in the letter of 15th March, 1934 to the
Portuguese Consul-General at Bombay (Indian Annex C. No. 45,
1,P. 422).
152. It appears from the foregoing that the exaction of customs
duty on rice grourn inNagar A~reli and exported to Darnan was
a matter to which the Portuguese authorities attached much
importance. They agitated it repeatedly over a period of many
years, and tried every rneans available to them of obtaining the
concession wliich they desired. yet, although they made the con-
cession a rnatter of petition anda matterof bargainingand sought
to obtain it on grounds of reciprocity, they never suggesteitwasa matter of right. The correspondenceconlains no reference to any
right in international law. The Portuguese never suggested that they
$ossessedany right of transit whatever.The British authoritiesregarded'
the matler dhrouglzoutas one to be governed solely by considerations
of policy and lying entirely wzthin lheir domestic jurisdiction. This
attitude the Portuguese authorities never chaElenged.
153. The view taken, alike by the British and Portuguese
Governments, of the unrestricted right of the British Government
to control the transit of goods through British territoryis further
illustratedby the action taken about salt manufactured in Daman.
On 25th January, 1895, the Government of India, in consequence
of-the iIlicit importation of salt into the British districts adjacent
to Daman, prohibited the importation by land'of Daman salt into
British India (Indian Annex C. No. 46). 1t is to benoted lhatinthis
case the British Government imposed, nof merely a dzsty, but a corn-
pleteembargoztfiontheirnportofsalt from Daman irztoBritish territory,
The Portuguese Governmentnever adlegedthat this infrilzged any right
enjoyed by thenz, althoztghclearly the embargowas not to their liking.
The free passage of salt through British territory from Daman to
Nagar Aveli and vice versa was one of the concessions demanded
by the Portuguese Government in the negotiations in 1906, men-
tioned in paragraph 149 above. The Secretary to the Government of
Bombay, in his letter of 1st November, 1906, there mentioned
(Indian Annex C. No. 44, 1, p. IO), referred to the prohibition of
1895, and said that the rernoval of that prohibition would lead
to a revival of the. difficulties and loss of revenue. As set out in
paragraph 149 above, the Government ofIndia informed the Secre-
tary of ,State (Indian Annex C. No. 44, 1, p. 414) that they rvere
"entirely opposed to the acceptance of the proposa1 of the Portu-
guese Government". This prohibition of the import of Daman salt
was never removed during the rest of the period of British rule in
India, yet the Portuguese Government never suggested that it
infringed any right possessed by them.
154. A matter which gave rise to much negotiation between the
British and Portuguese Governments was the distilling of liquor
in the Portuguese territories in India. Great quantities of such
liquor qere produced, and çmuggled over the borders into British
territory. The British Government were most anxious to stop this
process, as it had aserious effect upon their revenues. The Portu-
guese Government, on the other hand, showed little inclination to
cooperate to.this end, as the illicit traffic in liquor was very profit-
able for those conducting it. The negotiations which resulted show
both Governments adopting the same attitudes as have already
been noticed towards the transit of goods through British territory.
The British authorities felt themselves free entirely torohibit the
transit of particular goods, if this were necessary for the protection
of British interests. The Portuguese authorities never ventured COUSTER-BIEMORIAL OF INDIA (III 58) 63
to question the right of the British to place what restrictions they
pleased upon transit through British territory.
155. On the 12th January, 1892; in connection with the termi-
nation of the Treaty of 1878, the Government of India prohibited
entirelythe importation into any part of the PresidenCy of Bombay
of country liquor produced in Portuguese territory (Indian Annex
E. No. 15) .n the following years smuggling of liquor from Portu-
guese into British territory becarne rife, and negotiations between
the two Governments urere opened. As has been mentioned in
paragraph 149 übove, in the course of these negotiations the
Portuguese Government offered to take steps to check the traffic
in liquor if in return tlie British Government would allow other
goods to pass between Daman and the enclaves free.of duty. This
proposal, ashas been seen, was rejected by the British Government.
It thus proving impossible to reach any agreement with the Portu-
guese for the control of the liquor traffic, the Government of India
made an order on the 9th January, 1908 ,rohibiting the taking by
sea or by land of mhowra flowers (the material most commonly
used for distiiling.liquor)from any part of British India into any
of the Indian posseçsions of Portugal ((Iqan Annex E. 'No. 16).
For the time being this prohibition brought the smuggling to an
end; and on tlie ~1st December,, 1909 the Governor General of
Portuguese India \note to the Governor of Bombay suggesting
that negotiations be opened for a new agreement (Indian Annex E.
No. 17). He ~vrote:
"It appcars tome that such an agreement should be entered into
without delay for mutual convenienceand that itshould, ipossible,
be made in the manner I have ali-eadyreferred to, that is, comprising
not only the question of the syçtem of distillation ancl sale of
country licluor,but also ina spt:ciarnanner the question of transit
of productions across the respective frontiers between the two
Portuguese territories of Damari and Nagar--4veliand between the
parts of the latter inkrsecteby the British territories,-question
intimately connectecl with the former and which cannot be left
out of consideration in entering into this agreement."
156. Reporting this, on the 8th April, 1910, to the Government
of India (Indian Annex E. No. 1.7 )he Acting Chief Secretary to
the Government of Bombay u7rote:
"That Goveu~meni apparently wishes to bring undt:r rtwiew
the wholequestionof customsarra-ements olzthe fronfier, and espe-
ciallythe treatment of goods in ira-itfrom onepart of the Partu-
.. guese possessionslo unolker.Tlw Governoriw Coarncilisslrongly of
opinion thatlhisoldgiznot tobe allowed.The sole question for consi-
deration is upon what terms as to the manufacture and sale of
country liquor in Daman andNagar-Aveli, the British Government
will wittidraw their Notification No, 127-dated 9th January 1908,
prohibiting the export of Mhowra flowersfrom British districts into
the Portuguese territory;and the Governor in Councilis of opinion64 COUNTER-MEMORIAL OF INDIA (II58)
that the negotiations with the Portuguese Government should be
confinedto that point only."
157. Nothing appears to have corne of this çuggested resumption
of negotiations. About thistirne, however, it came to the notice of
the British authorities that, the supply of mhowra flowers having
been cut off bythe prohibition of 1908, dates and jagri were being
used instead of mhowra flowersfor distilling in Portuguese territory.
Orders were accordingly made by the Government of India, on the
6th January, 1912, and the 12th October, 1912, respectively, pro-
hibiting the export of dates and jagri from British India to Nagar
Aveli (Indian Annex E. Nos. 18 and 19). However, in order to
avoid unnecessary inconvenience to travellers the Government of
Bombay ordered, on 9th June, 1916 (Indian Annex C. No. 49),
that travellers from Daman to Nagar Aveli be allowed to take with
them one pound of dates each for their persona1 conçumption on
the journey. On the 4th January, 1913, the Government of India
made a further order, prohibiting the export of molasses from
British India to Nagar Aveli (Indian Annex E. No. 20).
158. In consequence of these measures, the Portuguese Govern-
ment again proposed the negotiation of an agreement. On the
and December, 1912, they submitted 'Bases of Convention' to the
India Office in London (Indian Annex E. No. 21).This document
contained propoçals (in articles 89and IO) for transit free of duty
between Daman and the enclaves of spirits and salt. Itis particu-
larly to be noted that it contained no mention either of the much
agitated question of nce or of a general exemption from duty of
goods passing between these points. The 'Bases of Convention'
were passed to the Government of Bombay for negotiation with
the Portuguese, but no resultwas achieved. In 1918 the Portuguese
submitted new 'Bases of Convention'. (Indian Annex E. No. 22).
This time the document did contain the following proposais:
8th
"The Portuguese Government engage to allow free transit of
British products that pass through their territories, under the same
condition as may be done by the British Government.
The British Government should take the following engage-
ments. ..
12th
To allow the salt produced in the salt works of Daman to be
exported not only to any pIace of British India bualso to any of
the Native States,inboats of any tonnage, by paying at respective
ports the customs duties which should not be higher than those
collectedat present.
13th
exchanged without the payrnent of duties at the British Custorns posts up to such quantities as may be fixed according to the Customs
statistics and enquiry to be held.
The Portuguese Government will take the necessary measure in
may not suffer any injury and engage-ther high contracting party
1st.-The quantity of salt shall be regulated at 14 pounds per
head. To prevent any embezzlement or misdirection it shall be sent
under a pass granted with the legal formdities accompanied by an
escort from Daman to Nagar-.4vely, and stored in two depots
established one at Silvassa and the other at Dadra. From these
places it shall be distributed to the heads of families on the produc-
tion of passeas it wa; done when the treaty of 26th December 1878
was in force.
2nd.-When salt is exportedby sea the Chief Customs Officerat
Daman shall inform of its shipment, by the shortest route, the
authority of the port of destination, and the exporter shall be
responçible to produce a certificate from the respective Customs
stating that thesal shipped wai;discharged and cleared there.
3rd.-The products of Daman in transit to Nagar-Avely and vice
versa shall be accompanied by a pass signed and sealed 'at the
Administrator's officestating the quality and quantity ofods, the
name of the exporter, the route of transit to follow, the nature of
conveyance and the narne of the driver. These passes shall be
presented at the British Custom posts and registered there, in order
to institute legal proceedings agaiiist any person con~mitting
products in transit rnay be aIso accompanieby aneescort of regular
troops in the same way as it is to be done with thsalt.
14th
The British Goverriment engage not to collect any duty on al1
British products which rnay be iinported into Portuguese territories
of Daman and Nagar-.Avely."
The elaborate nature of the saieguards here suggested by the
Portuguese Government is particularly to be nbserved. It iridicates
that Government's recognition, in view of the many abuses which
had previously occurred, that a special arrangement for transit of
goods between Daman and the enclaves could be made only on
very carefully defined conditions.
159. When writing tothe Governor-General of Portuguese India
on the 6th December, 1918, agreeing to discuss the new draft, the
Governor of Bombay spi:cifically excepted article8, 12, 13 and 14
(set out above) (Indian Annex E. No. 22).These articles the Govern-
ment of Bombay refused to consider. No more was heard from the
Portuguese Government of these 'Bases of Conveiltion'.
160. This was the position when the Firçt General Conference on
Freedom of Communications and Transit met at Barcelona in1921.
The Portuguese settlerrientsin India u7ere specifically excluded
from the scope of the convention drawn up at Barcelona. In the
course of the conference, the Portuguese delegate ivrote to the
6delegate of the Government of India a letter (Indian Annex C.
No. 89) containing this passage:-
"As 1 have told you my Government desires to arrive at a fair
arrangement regarding some difficulties in India, where it wiIlbe
very difficult to apply the Convention we arediscussing at Barce-
1ona:-
(a) most convenient for this transit that owing to some difficulties
arriving out of the salt trade, could be made on such basis as
would benegotiated between the two local Governrnents.
(b)As the salt question is difficult to setitwould be wiser not
to include this product in the transit arrangement."
This letter emphasizes once more the view held by both the
Governments, that such transit was a matter for negotiation and
not a matter affected by any right.
161. The negotiations thus contemplated by the Indian and
Portuguese delegates at Barcelona opened in 1923, when a com-
mission appointed by the Portuguese Government presented to the
Government of Bombay a memorandum relating to Daman, Nagar
Aveli and Diu. This mernorandum contained (inter dia) proposals
for the uniform administration of the liquor trade in Portuguese
and neighbouring British territories; the import into British terri-
tory of Daman salt; and transit of goods other than spirits and salt
between Daman and the enclaves free of duty, or alternatively, a
customs union between Daman (i.e. littoral Daman and the encla-
ves) and British India. Xegotations upon these proposals broke down
in 1925 upon the question of the $er capita liquor ration to be
allowed for Daman and Nagar Aveli, and were never resurned.
162. It rnay be observed that while these negotiations were
actually going on there occurred another instance of a total pro-
hibition by the British of transit of certain goods. On the 2nd June,
1924 the Government of India made an order prohibiting the
import of saccharine into British India from a number of foreign
Settlements, including Goa and Daman (Indian Annex E. No. 23).
163. The whole course of the negotiations thus provides yet
another confirmation of the attitude consistently adopted by both
Governments towards the question of transit across British territory.
The British authorities were very anxious, for the protection of
their revenue, to limit the amount of liquor distilled in Portuguese
territory. Failing an arrangement with the Portuguese, they did
not hesitate to make orders the effect of which was entirely to
prevent al1 transit of country iiquor, mhowra flowers, dates, jagri,
molasses and saccharine between Daman and the enclaves. In
spite of the obviousinconvenieîzcethus causedto thew, the Portuguese
authoritiesnever contendedthaf tlzesprohibitions infringed any right.
Instead, they tried to getrid ofthem by offering concessions desiredby the British. The terwu fiutforvlard bythePorkguese from time
fo time show clearly that they regarded any exemption /rom customs
duties and any degree ofJreedom of$assage ofgoodspassing between
Daman and the enclaves as a privilegtobe gained (ifpossible) by
bargaining, and notas a righwhich theywere in a positionto(lemand.
164. A number of other incidents testify to the recognition by
the Portuguese Governnient of tht: right of the British authoritieç
to regulate, solely on grounds of policy, the transit of goods through
British territory. Thus, on the 1st March1904 the acting Governor
of Daman wrote to the Collector of Salt Revenue at Bombay
(Indian Annex C. No. 47, 1, p.4351 ,ornplaining about the closing
on public holidays of the British customs house at Kuntii. This,
he alleged, had caused a good deal of inconvenience, medicines
urgently required in Nagar Aveli llaving sometimes been detained
at the customs house. The acting Governor did not suggest t:hat the
Government of Bombay were exceeding their rights in charging
duty upon, or even detaining, goods consigned from Daman to
Nagar Aveli, but merely wrote that he would "esteem it a great
favour" ifarrangements could be made for passing goods through
the customs house on public holidays. The Collector of Salt Revenue
wrote back on the z~st July,1904 (Indian Annex C.No. 47,I,p. 439),
stating that on such days stores of the Portuguese Government
would be passed, provided they were covered by a pass signed by
the Govemor or sorneresponsible ollicial. Again, on the 4th january,
zznd February and 15th March, 1915 (Indian Annex C. No. 45.)
the Government of Bombay, acting on requeçts of the Portu-
guese Consul-General ai Bombay, allowed certain specified arti-
cles of food, drink and tobacco to pass from Daman t«Nagar
Aveli free of duty, for the use of certain Portuguese officers.At
the same period the Military Commandant of Nagar Aveli waç
allowed (Indian Annex C.No 43,1,p. 4451,"asa matter of personal
courtesy", to import from Daman without payment of duty speci-
fied quantities of wines, spirits, tobacco and other provisions, for
his ou7nuse and that of fiis family. In the autumn 1915 ,owever,
a consignment for the Commandant was found, when opened at
the frontier, to contain articles not covered by the permit. Conse-
quently, the Government of Bonibay ordered (Indian Aiinex C.
No. 48,I, p. 445),onthe~3rdDecember, 19x6,that theCommandant
be allowed free passage each year of 60 dozen Portuguese \vine for
himself alone; the concession was not to be allowed to other offrcials,
nor was it to extend to other stores. On the 9th June, 1936, the
Portuguese authorities asked (Indian Annex C. No.50) to be allowed
to send from Daman free of duty some iron rails to replace the
wooden posts of the teltzgraph lines in Nagar-Aveli.They pointed
out in theirletter that the rails belonged to the Portuguese Govern-
ment, and the Government of Bombay was interested in these
lines, which formed part of the telegraph coinmunication between
Bombay and the native state of Dharampur. The Government ofIndia, as stated in their letter of the 10th August, 1936 to the
Government of Bombay (Indian Annex C. No. 50), were "pleased
to sanction, as a special case" the transport of the rails through
British territory free of customs duty.
V. Passage and Entry of Soldiers and Police, 1892-1947.
165. The next matter to be considered is that of the conditions
under which the police and armed forces of one party were allowed
to enter the territory of the other. While the Treaty of 1878 was
in force. such entry was governed by Article XVIII, which read:
"The High Contracting Parties rnutually agree to adopt in their
respective territories suitable measures for the prevention and
punishment of srnuggling; or other evasion of the spirit of the
arrangements relating to navigation, customs, salt, spirituous
lirluors and toddy, and opium effected by this Treaty.
The revenue, magisterial and police authorities of the Indian
dominions of the High Contracting Parties shall cordially
cooperate with each other for the maintenance, on the common
lines of traffic and elsewhere, of perfect security of persons and
property; and in the pursuit of criniinals and persons engaged in
smuggling and contraband practices, the said authorities of the one
High Contracting Party may cross the frontier and enter the domi-
nions of the other High Contracting Party: Provided that in such
dominions they shaIl act in accordance with the local laws and the
provisions of this Treaty.
The armed forces of one of the ttvo High Contracting Parties shall
not enter the Indian dominions of the other, except for the purposes
specified in former Treaties l,or for the rendering of mutual assis-
tance as provided for in the present Treaty, or except in conse-
quence of a forma1 request made by the party desiring such entry
to the other.
The exportation of arms, ammunition or military stores from the
Indian dominions of one of the High Contracting Parties into those
of the other shall not be permitted, except with the consent of,
and under rules approved of by, the latter. The Governrnents of
British India and Portuguese India shall CO-operateto enforce al1
such rules as are herein contemplated.
The Governor-General of British India will from time to time
communicate to the Governor-General of Portuguese lndia a list
of the Native States to be placed, in respect of arms ammunition
and military stores, u~-ioiithe same footing as British India."
1 A number of treaties Iiad been made bet~veen England and Portugal before
1S76, but only three of those treaties, vtz. those of 1373, 1386 and 1661, could
have been relevant in any ivay to this provision. ünder none of these three treaties
could Portugal haveclaimed a right to send troops into, or over, Brterritory.
Those of 1373 and 1386 provided for one party to supply rnilitary assistatoe
the other onlyat the requesof the latterThe treaty of 1661provided that Eng-
land should defcnd Portugal and send to Portugal certain troopsbut contained
no reciprocal promise on the part of Portugal anno terms obliging or entitling
Portugal to send troopsinto English territory. Theis considerable doubt, rnore-
over, about the extent to which any of these treaties remained effective and binding
in 1678. COlJNTER-~3~E~lORIAr .F IWDIA (III58) 69
166. That Article thus perrnitted the revenue, magisterial arid
police authorities of either party to cross the frontier and enter the
dominions of the other in pursuit of criminals or smugglers. The
clear inference from this provision is that those authorities had no
right to cross the frontier for any other purpose. The Article went
on to provide express1.y that the armed forces of either party
"shall not enter the Indian dominions of the other", except for
purposes specified in that treaty or in former treatieç or "in conse-
quence of a forma1 requt:stn.
167. The Treaty of 1878 lapsecl in January, 1892, so that the
treaty obligation itself containecl in Article .XVIII no longer
applied. Nevertheless, neither Government ever regarded itself as
possessing any right of such entry. Thus, on the 26th November,
1901 the Portuguese Consul-General in British India applied to the
Government of Bombay by telegram (Indian Annex C. No. gr)
for urgent permission for a Portxguese military detachrnent to
proceed from Daman to Bombay by land with arms. The Govern-
ment of Bombay answered on the same day (Indian Annex C.
NO. 51):
"1 am directed toacknowledge the receipt of youletterrio.161
of to-day's date,relative to the moveme,nt of a detachment of
soldierfrom Daman to Goa by railand in reply to statethat the
e&y of ar.medtroopsinto British territorycannotbe permitted utztil
theordersof Governmi:gh~taebeenobtai?zedand instructionsisszieto
thelocalBritish ofice~sconceïned."
.Permission for this detachment was sent to the Consul-General
on the 30th November (Indian Annex C. No. 51), with a request
that 'on future occasions the date of the proposed movement of
such detachments may be stated, and that sufficient notice may
be given to enable the orders of Government to bc obtained and
instructions to be isçued to the local authorities'. The Consul-
General acknowledged this request (Indian Annex C. ??o. 51) and
thanked the Gosrernment of Bombay for their "prompt and kind
concession". In 1912, there was a rebellion in Goa against the
Portuguese Government. In conriection with this, tlie Portuguese
Government asked permission (Indian Annex C. No. 52) to send a
detachment of soldiers across British territory close to the border,
and on the 5th dugust, 1912, the Government of India gave this
permission by telegram (Indian Alines C. No. 52)'as a special case'.
The Portuguese Goverilment subsequently abandoned this plan,
but in October asked pi:rmission [Indian Annex C. No. 52) to send
the detachment about thirty mi1t:sinto British territory by train,
and then to march thein nine miles to the Portuguese border. On
the xxth October, 1912, the Government of India refused to allow
the transport of the troops by train (Indian Annex C. No. 52).The
detachment eventually passed tl-irough British territory on foot,
and on the zjth Noveinber, 1912, the Portuguese Consul-Generalat Bombay sent to the Government of Bombay (Indian Annex C.
hio.52) the Governor-General of Portuguese India's "sincere thanks
to the British Government for having graciously allowed the passage
of Portuguese armed force in the British territories". On the 1st
October, 1912, four armed British police escorting two prisoners
passed through Goa on their way from Ratnagiri to Dharwar, no
previous intimation having been given to the Portuguese Govern-
ment. The Portuguese Consul-General wrote to the Government of
Bombay on the folIowing day (Indian Annex C. No. 53, 1,p. 459),
stating that in such cases the Portuguese Governrnent should be
informed. The Acting Secretary to the Government wrote back on
the 7th December, 1912 (Indian Annex C. No. 53,I, p. 462), apolo-
gizing for the incident and stating that officersof the Government
would be instructed to communicate directly with the Chief Secre-
tary to the Portuguese Government, or the local authorities, before
sending armed pohe through Portuguese territory. The Consul-
General replied (Indian Annex C. No. 53, 1,p. 4621, on the 21st
January, 1913,that there was no objection to the passage of British
police on duty through Portuguese territory, provided there was "the
same reciprocity under similar conditions", in which case previous
notice would be given to the Governrnent of Bombay. The Govern-
ment, bÿ their letter of the 20th February, 1913 (Indian Annex C.
No. 53,I, p. 463))accepted this arrangement, but made it clear that
itwas not to apply to armed troops, in the following terms:
"With reference to your letter, dated the21st January, 1913,
1 am directed to inform you that Government are willingto grant
reciprocity in the matter of allowingparties of Portuguese Armed
Police to travel across intervening British territory when it is
necessary for them to doso in journeying from one partof Portu-
intention is given to the local authorities.us intimation of their
"lt must becEear~yndersfood,however,that thisarrangementBoes
not extead20armed troops operatino.nthefrontiebetweenPortuguese
and British territory."
168. On the 7th August, 1913, the Portuguese Consul-General
at Bombay, Sen. Alfredo Casanova, wrote to the Secretary to the
Government of Bombay (Indian Annex C. No. 54))informing him
that a detachment of Portuguese soldiers had arrived in Bombay
that day from Goa. He met the Secretary to the Government the
same day, and apologized for having forgotten to give information
beforehand about the passage of the troops through British terri-
tory. On the 15th September, 1913, the Secretary to the Govern-
ment of Bombaywrote to the Secretary-General to the Govemment
of Portuguese India (Indian Annex C. No. 54),drawing his attention
to this incident and asking that orders be given to ensure that
Portuguese troops did not cross the frontier of British territory
until permission had been received from the Government. Furthercorrespondence about this incident took place later in the year.
The Portuguese Government triecl to rely on the arrangement set
out above (Indian Annex E. No. 24).The Government of Bombay,
in their letter of the zznd, January,1914 to the Chief Secretary to
the Government of Portuguese India (Indian Annex E. No. aq),
pointed out that this arrangement:
"rejers to reci$rocalizrra?zgementrselnting to the pao/aPolice
only and .nd O/ trocipO/ the British or Port~gueseGovernments
thvoz~ghInferve.izPortugueseor British territory."
169. During the year 1915 ,he Government of Bombay received
from the Portuguese authoritie; seventy-nine applications for
permission for Portuguese soldiers to pass through British territory.
These applications show that the Portuguese Government entirely
accepted the position that not even individual soldiers, far less
military detachments, could pass through British territory without
tlie prior permission of the British authorities.Of these seventy-
nine applications, one, dated the 13th January, 1915, was for the
passage of eleven soldiers from Daman ta Nagar Aveli (Indian
hnnex E. No. 251,anti another, dated the zand hlarch, 1915 or
the passage of one soldjer from Goa to Nagar Aveli (Indian Annex
E. No. 26). There is PCOindiclr.tio.~iln these iwo cases that either
Goverwnent thoztghiany special co~zsideralioapplied topassageto the
enclaves. The cases were treated in exactly the same way as other
cases,in which passage ioor #romthe enclaveswas not under consider-
ation. To makethis clear, the papers relating to one or two examples
of these other cases have been included in the Annexes (Indian
Annex E. Nos. 27 to 30).The applications also show thst major
movements of Portuguese troops through British territory did not
take place. In every case permission was being sought for the pas-
sage of the few men (sometimes only a single soldier) beiilg trans-
ferred from one station to another. In most cases the permission
sought was for passage through Bombay, this being usrialIy the
most convenient route.
170, An incident occurred on the 12th January, 1916 (Indian
Annex C. No. 55),when adetachnient of Portuguese soldiers arrived
in Bombay from Daman on theirway to Diu, having passed through
British territory without permission from the Government of
Bombay. 111consequence the Portuguese Consul-General (Senhor
Casanova) sent them back to Dainan. On the 12th February, 1916,
SenhorCasanova received a telegram (Indian Annex C. No. 55) from
the Governor of Diu informing hirn that a detachment ofPortuguese
soldiers would arrive in Bombay the following day and go on to
Goa. Senhor Casanova ;2once sent atelegram in reply (Indian Annex
C. No. 55)) telling the Governor of Diu that when soldiers had to
cross British territory he should a.lways"communicate beforehand"
for the "indispensable authorization". The following is his letter72 COUNTER-MERIORIAL OF INDIA (III 58)
(Indian Annex C.No. 55) to the Government of Bombay reporting
this:
"1have the honour to inform you that 1 am in receipt from the
Governor of Diu the foIlowingtelegram:
'Portuguese Consul Bombay.-Proceeding Goa via Jafrabad
arriving Bombay steamer day 13th. Sunday 4 soldiers Guarda
Fiscal. Governor Diu'.
having sent today only the following telegraphic reply:
'Governor Diu De1wada.-Always when soldiers have to cross
British territory beg communicate beforehand according to
resohtion betw-eenGovernrnents Portuguese India and British
to ask for indispensable authorisation and after being granted the
soldiers can proceed journey. Casanova.'
Request you therefore to issue the iiecessary orders that there
may be no obstacle in landing as welin departure to Nova-Goa
of the same soldiers who are expected from Diu, for whi1hantici-
pate rny best thanks."
171. Permission was asked in this way not only for the passage
of detachments, but even for the passage of individuals. Thus, on
the 6th May, 1916, the Portuguese Consul-Generd applied (Indian
Annex C. No. 55) tothe Government of Bombay for pernlission for
one officer and his family to travel from Bombay to Nagar Aveli,
and on the 9th May (Indian Annex C. No. 55) for a musician to
travel from Bombay to Daman. It is particularly to be obseïved2hat
the Portzcgz~esConsul-General'sown stutement, inhis telegramof the
12th Febrztary, 1916, quoted above (Indian Annex C. No. 55)'was
quite unquaZified. Before any Portquese troops could cross any
British territory, the "azrthorisation" of the British Government was
"indispensable".
172. Between the 29th Decernber, 1916, and the 25th August,
1917, the Government of Bombay received from the Portuguese
authorities seventy-nine applications for permission for Portuguese
troops to pass through British territory. One of these applications
dated the 10th February, 1917 (Indian Annex E. No. 31)) wrasfor
the passage of threeoldiers from Daman to Nagar Aveli, and another,
dated the 7th August, 1917 (Indian Annex E. No. p), for the
passage of a Portuguese officer and a soldier from Bombay to Nagar
Aveli. Once again, these two applications for permission to travel
to Nagar Aveli were treated in exactly thesame way as applications
for permission to travel through other British Territory.
173.It is clear from these incidents that neither Government
possessed a right of passage for arrned men over any part of the
territory of the other. This is confirmed by an agreement (Indian
Annex C. No. 56) made on the 25th September, 1920, between the
Government of Bombay and the Government of Portuguese India.
This agreement provided that armed police of either party might
enter the territoryofthe other in actual pursuit of an offender, andmight arrest the offender if the pursuit had not been interrupted;
they had toreport themselves as soon as possible to the authority
of the territory entered, and hand over the person arrested to the
police of that territory. Subject to this, arrned police either party
below the rank of sub-inçpector,and officers of, or abovethat rank,
were not to enter the territory of the other escorting prisoners
without consent previously obtained. The agreement also laid down
conditions on which un:mned police of either party, and officers
of, or above, the rank of sub-inspector, rnight enter the territory
of the other; and special provisions for British Police escortstravel-
ling by rail from British India to Marmagao and vice versa.
174. This agreement of rgzo aplilied only to police. For the pas-
sage of soldiers through British territory the Portuguese ('vern-
ment continued to ask permission. On the 30th January, 1933, the
Government of Bombay, in answer to a requesl dated the 28th
January, 1933, of the Portuguese Consul-General at Bombay, gave
instructions allowing a detachment of armed men to mos7efrom
Nagar Aveli to Daman and back (Indian Annex E. No. 33). Itwas
not only for detachments that permission was asked. On several
occasions the Government of Bonibay was asked to allow transit
for two soldiers escorting an officia1carrying money between Daman
and Nagar Aveli (Indian Annex E. Nos. 34 to 38).
175. Two particular incidents from the last years of British rule
may be cited. On the rxth Apnl, 1940 ,he Governrnent of Portu-
guese India wrote (Indian Annex C. No, 57,1,p. 473) to the Govern-
ment of Bombay, mentioning an occasion on which a German
missionary travelling on a bus fro~nNagar Aveli had been iirrested
by British troops at the customs post of Lavacha. The Portuguese
Government suggested that, as the road from Daman to Nagar
Aveli passed "several tiines" through Bntish territory, it niight
be possible to come
"to an understanding with the Government of Bombay, t)y which
on this road, and only on this raad, owing to its special nature,
anned police forces of both the Governmentç may travt:l freely,
independently of any previous authorization".
The Government of Bombay ariswered, on the 30th July, rgqo
(Indian Annex C. No. 57, 1, p. 474),thus:
April, 1940r,ntthe above subject, and to state that, in the circum-
stances stated, the Government of Bombay isprepared to enter into
reciprocal arrangements with the Government of Portuguese lndia
in the matter, çubject to the uriderstanding that the anned police
travelling across intervening British territory the road in ques-
tion çhould not cxceed ten in number at one time and that intima-
tion of their passage through Bntish territory is given by post to
the local authorities within 24 hours of the passage. If any number
exceeding ten at a time are required so to travel at any time the existing practice should bfollowedand concurrence of the British
authoritiesshould be obtained by prior notice as heretofore. 1 am
to request that you wilbeso good as to inform the Government of
Bombay whether the Government ofPortuguese India areagreeable
to the above proposal. On receiptof theiragreement, necessary
instructions wilbe issuedto the officersconcerned."
The close limits set by the Government of Bombay to this
arrangement are quite inconsistent with the existence of any
general right of passage for police. This is the more significant
because this arrangement was concerned specifically, and con-
cerned only, with passage between Daman and Nagar AveLi.
176. On the 17th October, 1941, the Portuguese Vice-Consul at
Bombay wrote (Indian Annex C. No. 58, 1, p. 484) to the Chief
Secretary to the Government of Bombay, asking that permanent
instructions might be issued allowing free transit to the armed
soldiers accompanying the Shroff (treasurer) whenever public funds
had to be transferred from Nagar Aveli to Daman. The Chief
Secretary answered on the 11th November, 1941 (Indian Annex
C. No. 58, 1,p.484) referring to the agreement of 1920,and stating
that the Government of Bombay anticipated no difficulty in
issuing the necessary orders on each occasion, and suggested that
the existing practice be continued. The Portuguese authorities did
not then pursue the matter further. Itrnay be observed that an
incident of April, 1943, is wrongly quoted in the Portuguese Me-
morial (paragraph 23 and Portuguese Annex No. 18)as an example
of armed men being aIIowed by the Government of Bombay to
escort public funds from Nagar Aveli to Daman. That incident
related to a transfer of funds from Nagar Aveli to Bombay, not
to Daman.
177. It may here be observed further that the Portuguese
Government, in support of their claim that, from the acquisition
of the enclaves to 1954 hey never ceased to exercise a right of
passage between the enclaves and Daman, cite only two more
incidents. Both belong to the distant past, and neither supports
the claim. There is first the incident of1826, rnentioned in para-
graph 21 of the Memorial. That incident has no significance, for
the object of the Portuguese expedition was to punish the Raja
of Dharampur, and the British Government was no less anxious
than the Portuguese Government that he should be punished.
Furthermore, the Governor of Daman thought it necessary immedi-
ately to report his proceedings against the Raja to the British
Political Agent at Surat. The second incident is that of 1849,
mentioned in paragraph 22 of the Mernoriai. In this case there is
no evidence that the permission of the British Government was
not sought and obtaiÏned before any Portuguese troops passed
through British territory. 178, From the foregoi~~it is clearthat, ajter the lapse of the Treaty
of 1878, the British authoritiein India always regardedthe $assage
fhrough any part of tlzez'rterritoof armed Poriugatesesoldiers or
police as a matter lying entirely wz'thintheir jztrisdicdtonbe per-
mitted or prohibzted asthey chose. The Portug~ese muthoritiesshared
this view and (except in cases coveredby speciakag~eements)applied
for permission whenever such passage was desired. There was laever
any s.tbggestionO/ the existence, by treaty, custom or any principle
of Law,of a gene~al rig.ltoj passage for armed men.
VI. Iritportof Arms, 18gz-1gq~.
179, Other questions, closely related to those concerning the
admission to British territory of arrned Portuguese troops and
police, must now be discussed. These questions arose in connection
with the introduction by the Portuguese into British territory of
arms. Here again, both in cases of individuals bearing arms and
in cases of consignment.~of arms sent by the Portuguese Govern-
ment across British territory, it is clear from what happened that
neither side regarded t.he Portuguese as posseçsing any peculiar
rights. The ordinary municipal law of British India was applied
to these cases, subject to one or two special concessions made by
the British Government from tirne to time.
180. From 1860 onward, ifnot from an even earlier date, no
armç could be carried os7erthe British territory intervening between
Daman and the enclaves, unless a licence had been got from
the British authorities. This was the effect of section 1.7of Act
No. XXXI of 1860 (Indian Annex E. No. 39).
181.This Act was replaced by the Indian Arms Act, 1878
(Indian Annex C. No. 59),w+ich extended to the whole of British
India (and still extends to the whcileof the Indian Union). Secti6n
provides that no persori shall bring or take by sea or land into or
out of British India any arms, ammunition or military stores,
except under a licence (but this does not apply to arms, other than
cannon, or ammunition irnported or exported in reasonable quanti-
ties for his own private use by any person lawfully entitled to
possess them). Sections 8 and g provide for the imposition of duties
on arms brought into British 1.ndia. Section ro empowers the
Governor General in Council to regulate or prohibit the transport
of any description of arms, amrnunition or military stores. The
Indian Arms Rules, 1879 (Indiari Annex C. No. Go), macle under
the powers contained i~ithis Act, provided for the issue of licences
for the irnport and expcirt of arms, ammunition and rnilitary stores.
In April, 1880, the Governor General in Council added to these
Rules rule 7A (Indian Annex C. No. 60). Rule 7A (a) provided that
nothing in the Rules should be tleemed to authorize the grant of
a Licence to import arms, amtriunition or military stores from
Portuguese India. Rule 7A (b) provided that nothing in the Rules
should be deemed to a.uthorize the grant of a licence to export toPortuguese India any arms, ammunition or military stores, unless
they were exported for the exclusive use of, or coveredby a specisl
irnport licence issued by, the Government of Portuguese India.
Rule 7A (b) was made in compliance with Article XVIII of the
Treaty of 1878, one of the provisions of which was:
"The exportation of arms, ammunitionormilitary stores fromthe
Indian dominions of one of the High Contracting Parties into those
of the other shall nobepermitted, exceptwith the consent of, and
under rules approved of by, the latter. The Governmentof British
India and Portuguese IndiashallCO-operateto enforceal1such ruIes
as areherein contemplated."
182. Some exceptions to rule 7A (b)were subsequently made,
and in 1895, the Treaty having Iapsed, mle 7A (b) was repealed.
(Indian Annex C. No. 62.) Rule 7A (a)remained in force, and was
re-enacted in new Rules made in 1909and in subsequent re-enact-
ments (Indian Annex C. No. 66). The effect of rule 7A (a)was to
make it impossible for any arms, ammunition or military stores to
be sent from Daman to Nagar Aveli or vice versa or from any other
part of Portuguese India into British India, without the special
dispensation of the Government of India. As will appear, the
Portuguese Government recognized this operation of the rule by
applying for such dispensation whenever they wanted to send a
consignment of arms across British Territory. They never clairned
to be entitled to send arms, ammunition or military stores across
any part of British territory,or complained thatrule7A (a)infringed
any right possessed by them.
183. A few instances may be cited of such application by the
Portuguese Government. On the 3rd November, 1898,the Governor
General of Portuguese India wrote to the Governor of Bombay
(Indian Annex C. No. 63),asking that the British police be directed
to offer no objection to the carriage of certain rifles, bandoliers and
ammunition from Daman to Nagar Aveli. The necessary instructions
were given to the district officers, and on the 2nd December
1898 the Governor General wrote (Indian Annex C. No. 63) to
thank the Governor for "the readiness and goodwill" with which
he had granted the request. Another example occurred at the end
of 1914. On the 21st December, the Portuguese Consul-General at
Bombay wrote to the Secretary to the Government of Bombay
(Indian Annex C.No. 64, 1, p. 496). asking for permission to send
certain rifles and cartridges from Goa to Nagar Aveli and certain
guns and cartridges back from Nagar Aveli to Goa. On the 30th
December, he wrote (Indian Annex C. No. 64, 1,p. 498) saying that
permission was required for passage between Daman (not Goa)
and Nagar Aveli. A minute (Indian Annex C. No. 64, 1, p. 497)
written in the office of the Secretary to the Government pointed
out that the Government of Bombay could grant a licence for the
export of the arrns, but the import, since importation of arms andammunition from Portuguese India was prohibited under the
Indian Arms Rules, 1909 rule 7, could be çanctioned only by the
Government of India. The Government of Bombay wrote to the
Governrnent of India about this on the 31st December,1914 (Indian
Annex C. No. 64,I, p.qog), and the latter Government on the 28th
January, 1915 (Indian Annex C. No. 64, I, p. po), sanctioned the
importation of the arms and am~nunition from Daman to Nagar
Aveli.'Import and export licenses(Indian Annex C.No. 64,I,pp. 502
eisep.) were accordingly issued to the Portuguese Consul-General.
A similar instance occur~ed in 1g1:7.On the 10th September, the
Secretary-General to the Government of Portuguese India wrote
to the Secretary of the Government of Bombay (Indian Annex C.
No. 65, 1, p.j~z) asking for an authorization for the seridingof
certain arms, equipment and am~nunition from Daman to Nagar
Aveli. The same procedure was iollowed as in the last instance.
The Government of India having, on the 1st October, 1917,
sanctioned the importation (Indiaii Annex C.No. 65, 1,p. 514) m-
port and export licenses (Indian Annex C.No. 65, 1,pp. 518 elseq.)
were issued to the Gow:rnor of Daman.
184. In later years permissioii was still asked. On the 11th -
January, 1939 the Governor Gerieral of Portuguese India wrote
tothe Governor of Bombay, asking for free transit for three muskets
being sent from Nagar Aveli to Daman and three others to be
sent from Daman to Nagar Aveli (Indian Annex E.No. 40),on the
24th March, $939, he wrote again, asking for free transit for eight
muskets witli400 ball-cartridges, and onerevolver wi50 cartridges,
to be sent from Darnan to Nagar Aveli {Indian Annex E.
No. 41). On both occa~ions the riecessary facilities were granted.
On the 17th April, 1940, the Government of Portuguese India
applied to the Governnient of Bombay for free transit for 52,000
cartridges to be sent from Damaii toNagar Aveli, and the neces-
sary facilities were granted (Indizin AnnexE. No. 42).
185.Sections 13 to 1.5of the Indian Arms Act, 1878, prohibit
the possession of arms, ammunition or military stores by any
person, except under a Iicense. By notification of the 6th March,
1879 (Indian Annex C. No. 60), the Governor-General in Council
exempted from the operation of these sections a number of claçseç
of perçons, including Europeans, other than British-born subjects
of the Queen-Empress, who were temporarily residing or travelling
in India. Al1 Portuguese officers and officials not covered by this
exemption were always regarded by both British and Portuguese
Governrnents as obliged, under the Indian Arms Act and Rules,
both to obtain licenses for their arms and to pay duty on them.
This appears from the special concessions which were sametimes
made, and the Portugut:se Government never protested against the
operation of the ,4ct or complained of the infririgernent of any
right.78 COUNTEK-MEMORIAL OF IPU'DI(III58)
186. Thus, in 1893 the Government of Bombay proposed to
exempt from the operation of the Arms Act al1non-European civil
officials entitled toWear a uniform and sword, and al1 military
officers, of the Government of Portuguese India. The Government
of India answered thus on the 26th July, 1893 (Indian Annex C.
NO. 67, 1, p. 527):
"1am directed to acknowledgethe receipt of your letter No. 3240,
dated the 20th May, 1893, regarding the proposed exemption of
(a)non-European civil officials, serving under the Government of
Portuguese India, who are entitled to Wear a uniforrn and sword,
and (bmilitary officersof that Government, when travelling through
British India, from the operation of the Arms Act, and from tlie
liability to pay customs duty in respect of the weapons they carry.
Inreply, Iam to Saythat the Governor-General in Council,as at
present advised, does not consider it desirable to amend the notifi-
cations cited in the margin as suggested in paragraphs3 and 4 of
your letter under acknowledgment, with a view to authorise the
exemptions yroposed. The Govemor-General in Council would not,
however, offer any objection to the issue of executive orders by the
Bombay Government to the effect that the provisions of Chapter IV
of the Indiail Arms Act (XI of 1878) should not, as a matter of
courtesy, be enforced in the case of such officialswhen travelling
through specified districts in the Bombay Presidency, and that the
exempted from liability to the payment of customs duty at such be
places in the Bombay Presidency as the Governor in Council may
specify. 1 am to add that the particular case of exemption from
customs duty reported in your letter under reply is sanctioned."
(Chapter IV of the Act includes sections 13 to 15.)
Accordingly, the Governor in Council ordered on the 28th
December, 1893, (Indian Annex C. No. 67, 1, p. 527) that, "as a
special case" and "as a matter of courtesy", Chapter IV of the
Act should not be enforced against these officials and officers "when
travelling through Districts through which the ordinary routes by
land or sea from Goa to Daman pass"; and an order of the zznd
February, 1894 (Indian Annex C.No. 67, 1, p. 528) exempted from
customs duty in the sarne districts the arms which these officials
and officers were entitled to carry in Portuguese India. It is to be
noted that these privileges applied only between Goa and Daman,
and not between Daman and Nagar Aveli. The Governor General
of Portuguese India, writing on the 20th March, 1894, to the
Governor of Bombay (Indian Annex C. No. 67,I, p. 526), promised
in return "equal privileges to British functionaries who may pass
through Portuguese India".
187. On the 1st bIarch,1904 the acting Governor of Daman wrote
to the Collecter of Salt Revenue at Bombay (Indian Annex C. No.
47, 1,p.435), asking that officials of his district crossing the frontier
for sporting purposes might not be required to get licences for their
guns. In his answer of the zrst July, 1904 (Indian Annex C. No. 47,1,p. 439), the Collector referred to the order of the zznd February,
1894 (Indian Annex C.No.67,I, p. jz8), and regretted that he could
not rnake any concession beyond those already granted. By an
order of the 4th March, 1907, (Indian Annex C. No. 68), the Govern-
ment of Bombay extended the exemption from customs duty,
granted by the order of 1894, to the weapons belonging to Portu-
guese officers passing through Bainbay en route to Goa or other
Portuguese possessions. The exemption still did not apply to officers
travelling between Daman and Nagar Aveli.
188. That the rules governing the carriage of arms in British
territory were çtrictly enforced appears again from an incident
which occurred in 1917 (Indian Annex E. No. 43). A Portuguese
officia1travelling frornGoa to Nagar Aveli arrived at Bombay on
the 15th May, 1917, with twosporting guns. The British authorities
at Bombay detained these guns. It was only after the sanction of
the Government of 1ndi;i had beeri given that a licence was issued
for the export of the two guns froni Bombay to Nagar Aveli.
189. On the 11th April, 1908, the Comrnissioner of Customs,
Salt, Opium and Abkari wrote tothe Secretary tothe Government of
Bombay (Indian Annex C. No. 69, 1,p. 53z), referring to the orders
of 1894 and 1907 and suggesting that, as British officers from time
to time had occasion to pass through Castle Rock to Marmagao, the
Portuguese authorities might be asked in return to allow British
officers to carry their persona1 firearms by rail across Portuguese
territory without restriction. This suggestion was communicated
to the Governor General of Portuhwese India; he answered on the
14th July, 1908 (Indian Annex C.No. 69,I, p. 533).offering to allow
British civil or militaryfficers travellingby the Rlarmagao railway
to carry a revolver or a gun free, and asking for "a similar con-
cession" for Portuguese civil or rnilitary officers.The Commissioner
pointed out, in a letter of the 15th October, rgo8, to the Secretary
to the Government (Indian Annex C. No. 69,1, p.535),that the only
return the Portuguese ciluld claim was the same concession for the
firearms of Portuguese officers passing from Goa via Castle Rock
direct to Daman. The Governor of Bombay wrote to the Governor
General on the 13th November, 1908 (Indian Annex C. No. 69,
1, p. 536),thus:
"In thanking your Excellency for your letter No. 83, dated the
14th July, 19081,have the honour to explain that al1that is desired
by my Government is that Britishofficers passing through Goa
territory on theiway to British territory mabe allowedto trans-
your Government, a similar concessionwillbe made by my Govern-by
ment to Portuguese officerspassingdirect, through British territory,
from one portionto anotherof E'ortugueseterritory."
The Governor General, by his letter of the z~st November, 1908,
(Indian Annex C. No. 69, 1, p. 536) accepted this proposal. 190. It is thus clear that the Portuguese never conceivedthemselves
tofiossessJa?tyright dosend orfocarry arms across British territory.
They never allegedthatany treaty, custom or Princifloflaw eqtitled
lhem to ignore the ordinary nzztnicipal lawof British India. They
never contendedihaf any special rules appZiedtathe enclavesofDadra
and Nagar Aveli. The arrangement of 1908,under which Portuguese
officers travelling direct between Daman (or Goa) and the enclaves
could carry their firearms, without let or hindrance, kvasstrictly
reciprocal, a similar concession being granted by the Portuguese
to Britishofficerspassing through Goa. Both Governments regarded
al1matters of the carriage or consignment of arms within, or across,
any British territory as lying exclusively within the domestic
jurisdiction of the British Government.
VII. Conclusion
191. Before passing from the British period, it is instructive
to notice the inferences which are clearly to be drawn from the
conduct of the British and Portuguese Governments. Betureen the
termination of the Treatq in 1892 and the end of British rule in
1947 the Portuguese never attempted to claim, far less to exercise,
any right whatsoever of transit or of passage over British territory.
The British Government levied customs duties on goods passing
between Daman and the enclaves, granting and withdrawing
concessions just as they chose. Transit of certain goods they pre-
vented entirely, by the imposition ofembargoes. When itwas desired
that Portugucse troops should enter British territory, whether for
the purpose of travelling to, or from, the enclaves or for any other
reason, the Portuguese authonties asked the British authorities for
permission. Permission was asked in the same way for entry of
Portuguese police, subject to special agreements of limited scope.
Carriage or despatch of arms and ammunition by the Portuguese,
whether to, or from, the enclaves orelçewhere, was subjected to the
ordinary municipal law of British India. The Portuguese never
complained that any feature of the system just described con-
stituted an encroachment upon their rights. Never did they protest
on the basis of treaty, custom or any other legal ground against any
of the controls and restrictions exercised by the British. Such
conduct would be quite inexplicable, had the Portuguese possessed,
. or then believed themselves to possesç, the rights which now they
claim.
THE POST INDEPENDENCE PERIOD: 1947-
192. After the withdrawal of the British from India in 1947,
the Portuguese authorities seized the opportunity to address anew
to the Government of Bombay requests ~vhichthey had previously
made without success in the days of the British rule. On neither
side, hou~ever,was there any change in the fundamental attitudesand presuppositions which have already been illustrated. In
making re6ests concerning transit of goods and passage of persons
between Daman and Nagar Aveli, the Port uguese authorities still
made no attempt to rely-on any right, whether existing by treaty,
custom or principle of 1.aw. In dealing with such requests the
Indian authorities guided themselves purely by considerationsof
policy, and regarded the transit arid the passage as matters Iying
wholly withi~i the dornestic juristliction of India.
193.Thus, on the 27th November, 1947, the Portuguese Consul
at Bombay wrote to the Govemment of Bombay (Indian Aiinex C.
No. 70, 1,p. 538) complaining that a temporary customs house
had been opeiîed at Pirnptolia, for the purpose of preventing certain
goods from entering Nagar Aveli. He also complained that such
things as wheat, fiour and sugar were subject to duty when passing
from Daman to Nagar Aveli, and there were other things (such
as salt) the entryof which into Indian territory was prohibited
altogether. He proposed that the Portuguese and Indian Govern-
ments should agree that. no duty be demmded on goods, other
than goods of local production, transported from Daman to Nagar
Aveli. The Assistant Collector at Anand stated, in a letter of the
20th February, 1948 (Indian Annes C. No. 70, 1, p. j42), that the
post at Pimpolia had been established by the Civil Supplies
Department, in order to prevent more than specified quantities
of rationed and controlled commodities passing intoNagar Aveli.
The Collector of Central Excisepa.ssed this information on to the
Chief Secretary to the Government of Bombay in his Ietter of the
5th March, 1948.(Indian Annex C. No. 70, 1, p.541. )e added
that, for al1customs purposes, Nagar Aveli \vas considered Indian
territory; so that imports from Daman, whether for consumption
in Indian territory or in Nagar Aveli, were liahle to duty.
194. On the 17th May, 1949, the Governor of Daman wrote
to the Collector of Ceritral Excise at Bombay (Indian Annex
C. No. 7r), asking that. the import of Daman salt into Nagar
AveIi for local consurnption be perrnitted. The Collector, reporting
this to the Secretary of the Central Board of Revenue in a letter
of the 4th Jiine,1949 (Indian Annex C. No. 711,stated that the
prohibition of the import of Danian Salt dating from 1895 (see
paragraph 153 above) had been irnposed to safeguard the salt
revenue'of the Governinent of lndia. The central excise duty
on salt had been abolished in 1947 o there was, in his opinion,
no point in maintaining the embargo on Daman salt. Government
of India accepted this tiew, and removed the prohibition of the
entry of Daman saIt into Indian territory.
195. In 1950 the Government of India made a considerable
concession,allowing all stores of the Portuguese Government to
pass from Daman to Nagar Aveli free of duty, if accompanied
by the Governor of Daman's certificate. Information of this is
7contained in the letter of the 14th June, 1950, from the Ministry
of External Affairs to the Portuguese Legation in India. (Indian
Annex'C. No. 72,1, p. 544.)The concession \vas witlidratvn in1954-
196. From the above it is clear that the Government of India
maintained the ssme position which obtaincd before 1947. It
reaffirmed its right to Ievy custorns duties on goods entering India
from across the customs frontier with Portuguese possessions.
The Government of India continued to mairitain that exemptions
from customs duties was a matter entircly within its discretion
and that exemptions grarited in respect of goods intended for
consurnption in Dadra and Nagar Aveli were alu-ays a matter of
concession which could be modified or withdrawn or regrantcd
according to the discretion and policp of the Government of India.
197. Regarding traveI betwecn Portuguese possessions and India
and the registration of foreigners, the Government of India rnain-
tained the existing regime after the grant of independence in
1947. This meant (see paragraph 46 above), that natives of
Portuguese posçessionç could travel between India and the Portu-
guese possessions without requirement of passport and visa;
Portuguese Europeans were required to produce a passport and
visa when entering indian territory by sea, air or laiid; natives
of Portuguese possessions were exernpted from provisions i-elating
to registration of foreignerç.
198. Thc Portuguese Government, on the other hand, dccided
to start a breach in the regime of easy iritercourse which had
prcviously esisted between the Portuguese possessions and Inctia.
Only four months after India became independent, the Portuguese '
Government promulgated Decree No. 4590, dated the 26th Decem-
ber, 1947. This Decree put restrictions on the entry and sojourn of
Indian nationals in the Portuguesc possessions. Under its terms
"natives of neighbouring Iridia" wcre required to produce docil-
mcnts and declarations of identity, whenever the authorities
considered such production necessary. The same decrcc required
Indian nationals to present themselves before the police authorities
in the area of their residence within eight days from the date of
entry into Portuguese possessions. (Indian Annex E. No. 44.)
199. Thc Government of India did not take any corresponding
action and the natives or "domiciled persons" of the Portuguese
possessions continued to remain exempt from the production of
any passport or identity paper mhen entering India. They also
remaincd exempt from the provisions of the liegistration of
Foreigners Act.
200. The Portuguese Decree of 26th December, 1947,was modified
shortly after its issue and made still more restrictive by Order in
Council Tuo.4632, dated the 25th Iifarch, 1948. (Indian Annex E.
No. 45.) This Order required Indian nationals to present themselvesbefore the Portuguese police authorities within twenty-foui- hours
of entry into the Portuguese territory. The Government of India
protested to the Portuguese Government thst by imposing these
restrictions it was underrnining the traditional friendship and good
neighbourly relations which had existed between the two C ~'overn-
ments. Tc)these protests the Portuguese Government turned a deaf
ear, and the orily result of the protest of the Indian Government
was that in 1950 the Portuguese Governmeilt extended the time
limit of twenty-four hoiirs to seventy-two hours. (Indian Annex
E. No. 46.)
201. The above Portuguese decrees and orders gave \vide powers
to the Portugiiese polici: to stop, interrogate and harass Indian
nationals and the Portuguese police did not hesitate to use them.
Innumerable cases of harassment of Indian riationals in Goa were
dealt with in exchange of notes between the Ministry of External
Affairs of the Government of lndia and the Portuguese Legation
in New Delhi. In a note of the 16th October, 1952, the Ministry of
External Affairs of the Government of lndia wrote to the Portuguese
Legation in New Delhi:--
"Witbin the past ft:w months cases have also been brought to
the notice of the Consulate General of India in Goa of Indian
nationals entering and desiring to reside in Goa for over a yeriod
of a fortnightwho have, after c.omplying with the regulations of
Order in Council No. 5046 dated the 23rd Marcli,1950 been called
up by the Central Police Organizstion, Nova Goa, for further
cluestioning.Indeed it wouIdappr:arthat the purpose of the original
regukitions, harsh as they were,is being extended still further to
cause genuine inconveniences and even harassment to Indian
nationals entering Portuguese territories."
(Indian Annex A. So. 12.)
There was no satisfactory reply frorn the Portuguese Legation
to this represeiitation.
202. The I'ortuguese Government was thus responsible for a
rapid deterioration in tlie traditional regime of easy intercourse
for "nativesJJ of the Indian continent betweeil British India and
the Portuguese possessions.
203. As regards the entry of Portugucse Europeans the position
continued as before. (Intiian Annex E. No. 47.) In 1949 the Chief
of Cabinet of the Portuguese Goverr~orGeneral raised with the Indian
Consul General in Goa certain points for clarification on Indian
passport regulations. He incluired ifa Portuguese document known
as "Guia" would be acceptable to the Indian Government in lieu of
passport, and if al1public servants, jncluding Portuguese Europeans,
who possessed legal dorriicile in the Portuguese possessions came
within the purview of the: exemptions clause in the Indian Passport
Rules. (Indian Annex E. No. 48.)By a letter dated the 17tl-iJ;inuary,
1950, the Indian Consul General informed the Portuguese Chief ofCabinet that "Guias" in lieu of passports were acceptable to the
Indian Government, that al1 Portuguese nationals, including
Europeans, were required to be in the possession of "Guias" or
passports duly visaed for entry into Indian territory, and that
only those ~vhowere domiciled in the Portuguese possessions were
exempt from these requirements. He defined domicile in Portuguese
possessions in the following terms:-
"In accordancewith general international practice in this respect,
the Government ofIndia are prepared to regard only those persons
as domiciled in Portuguese India who are resident in Portuguese
India and who intend to make that country their permanent home.
The mere fact that anofficiais servinginGoa does not prove that
jt isorwjll be hispermanent honie."
(Indian Annex E. No. 49.)
It may be recalled that the position in regard to domicile was
clarified in similar terms by the British Government in 1940 and in
1945 (See Paragraphs 39 and 42 above.)
204. Visas on Portuguese "Guias" or passports were obtainable
from the Indian Consul General in Goa. In fact one of the most
important functions of the Indian Consulate General in Goa \vas
to examine these requests and to grant the visa in proper cases.
205. After the independence of India the hostile poIicy which
the Portuguese Government had adopted towards the Indian
Government did not find expression only in the Decrees and Orders
which have been mentioned above. The Portuguese Government
began a spate of restrictive legislation aimed against Indian nation-
als and various Indian interests in the Portuguese possessions,
cultural and commercial, In 1950, the Portuguese Government
decreed restrictions on the setting upof commercial establishments
by Indian nationals in the Portuguese possessions in India. In 1952,
a measure intended to affect the resident Indian popula.tion provided
that no "foreigner" could rent accommodation without authorization
of the Portuguese Government. In the same year an authorization
from the Portuguese OverseasMinister at Lisbon was made compul-
sory in respect of transactions connected with immovable property.
The entry of Indian newçpapers and magazines was banned. Entry
of Indian films was restricted, and those that were allowed were
required to have Portuguese sub-titles. Administrative orders and
regulations made it difficult for Xndian nationals to continue in the
Portuguese possessions with peace and honour. Often they were
subjected to ill-treatment by the police. (Indian Annex A. No. 12.)
206. Ltihile the Government of India did not retaliate against
the Portuguese Government by introducing new laws and regu-
lations on entry and exit between the territory of theIndian Union
and the territory of the Portuguese possessions, it was determined
at least tosee that the existing laws and regulations were properly
observed. From non- on, therefore, the Government of Xndia insisted on strict observance of the laws and regulations in respect
of entry of Portuguese Europeans into India lvhich existed during
British times and which had on scveral occasions been expressly
acquiesced in by the Portuguese Government.
207. In 1953, an incident occurred which drew the attention
of the Tndian Government to the violation of Indian laws and
regulations relating to eritry intci India on the part of certain
Portuguese European oificials. Accordingly, on the 1st October,
1953,the Indian Consul General in Goa protested tothe Portuguese
Governor General that on a number of occasions Portuguese
European officials had travelled between the Portuguese pos-
sessions in India, thus entering Inilian tenitory, without obtaining
visas, and in contravention of the Indian Passport Act. He also
complained that certain Portuguese European officials, having
entered India cither on transit visa or on entry visa, had indulged
in various officia1activities not perrnitted to them by virtue of
the terms under which thosc visas were granted. (Indian Annex E.
No. 50.) On the 5th Decernber, 1953, he addressed another letter
in tvhich he referred to entry at the Daman border in contra-
vention of the Indian laws and regulations. (Indian Annex E.
No. 51.T)o this letter he received a reply dated the zxst December,
1953, from the Chief of Cabinet of the Portuguece Governor
General stating that:-
"The ban whereby the Europt:an officiaicannot transithrough
Indian Union territory between Daman and Nagar Aveli without
visas from the Consulate Generalof India, constitutes a change to
the status quo ante, owing to which fact that inatter has heen
submitted tu my Government."
Nevertheless the Chief of Cabinet added:-
"Guias arebeing issued to the European officialson dutin the
Daman District as m:llas to their familiesfor the purpose of being
visaed by you."
(Indian Annex E. No. 52.)
Thus, the Portuguese Government did not question the require-
ment of a passport and visa in respect of Portuguese Europeans
desiring to enter Indiari territory.
208. The Ministry of External Affairs of the Government of
Tndia also addressed a note to the Portuguese Legation in New
Delhi protesting against the general unfriendly attitude of the
Portuguese Governrnent and the misuse of the concessions hitherto
enjoyed by the Portuguese European officials, (Indian Annex E.
No. 53.)In its reply of the 11th February, 1954, the Portuguese
Legation did not question the requirement of visas but "firmly
reiterated their conviction that the principle of CO-operiition to
facilitate the transit of officials should be re-established although86 COUNTER-hfEMORIaL OF INDIA (III58)
çubject to local arrangement to be agreed upon between the two
Governments". (Indian Annex E. No. 54.)
209. In 1954 there was a further deterioration in the situation
owing to the arbitrary arrest and deportation of Dr. Gaitonde,
an eminent surgeon, by the Portuguese authorities in Goa. This
incident made a very bad impression in India and particularly
among the Gosns of Bombay. (See paragraph 226 below.) In a
note of protest handed to the Portuguese Legation in New Delhi
on the rgth ilIarch, 1954, the Government of India pointed out
that the "continuance of these repressive measures resulting in
the arrest and deportation of Goans for professing pro-India11
sentiments is likely to haveserious repercussions in India." (Indian
Annex A. No. 6). The Portuguese Government, however, intensified
its policy of rcpression and the Indian Governinent then decided
to exclude from the exemption iri the Indian Passport Rules
those "domicilcd persons" who were in the service of the Portu-
guese Government. This was donc by a notification under the
Indian Passport Act made on the 10th April, 1954 .he exempted
category was nour defined in the following terms:
"persons dorniciled ia Portuguese establishment in India oiher
than persons inthe service othe Government of such establishment
or the members of the family of any such person proceeding from
any such estabIishment on or afterthe 1stAprit, 1954".
(Indian Annex E. No. 55.)
210. The above was acquiesced in by the Portuguese Govern-
ment and requests for visas and permits for Portugueçe Europcaiis
and native subjccts in the service of the Portuguese Government
desiring to enter India for holiday or for transit from one Por-
tuguese possession to another, were received by the lndian Consul
General in Goa, and granted by him on individual merits. However,
some Portuguese officials continued occasionally to cvade Indian
Iaws and regulations relating to entry into India. Some of these
instances were brought to the notice of the Portuguese Legation
at New Delhi by the Ministrjr of External Affûirs of the Govern-
ment of India. (Indian Annex E. No. j6.)
211. Thus in April 1954 the position in regard to iravel between
Portuguese possessions and India \iras that Goans who were not
in the service of the Portuguese Government could enter Indian
territory without formalities and frcely move within it; and that
Endian nationaIs also could enter the Portuguese possessions
without requirernent of passport and visa, but were required to
report to the police authorities within a certain time of arriva1
and were subject to inspection of identity certificates, restrictions
on residence, and officia1 harassment. Portuguese Europeans and
Portuguese native subjects who were in the service of the Portu-
guese Government were required to produce "Guias" or pas$ports having a visa for entry in or transit through India. There
was no ban on such entry or transit right up to the date of the
insurrection in Dadra. The day before the insurrection in Dadra,
that is, on the zrst July,1954, the Governor of Daman had been
alowed to enter Indian territory and proceed to Dadra and to
complete the rcturn journey on the strength of visas granted by
the Indian Government. lifter the iiisurrection Dadra, the Indian
Government ceased to gi-ant visas to Portuguese Europeans or to
native subjects in the service of the Portuguese Government
wishing to go to Dadra and Nagar Aveli.
212. On the 3xst July, 1954, the Portuguese Legation in 9ew
Delhi informed the Ministry of Externa1 Affairs that "al1 Indian
nationals ~vho wish to enter the Portuguese Indian territory at
any plüce of the frontier have to produce passports or equivalent
documents duly visaed by.,Portuguese Consular Authoritit:~. This
procedure wiIl be enforced from i:he 1st August, :1954".(Indian
Annex-E. No. 57.) On the 7th August, Igjq, the Portuguese
Commissioner of Police issued a notice to al1 mine-owni:rs and
other employers to arrange for the departure from Portuguese
territory ofal1 Indians ivho did not possess residential gierrnits.
(Indian Annex E. No. 58.) As a result of this notice more than
six thousand Indiaris were expelled from Goa and Iiad to cross
the border into India, leaving their entire property behind.
213. On the 4th August; 1954, the Government of India issued
a press-note informing the general public of the Portuguese regu-
lations and of the intention of the Government of India to introduce
"a permit schcme in regard to en.try of persons from the Portu-
guese settlernents into India". (Indian Annex E. No. 59.)This
permit scheme came iiito force on the 4th Septemher, 1954, when
the Indian Passport Rriles 1950we1.eamended to omit the excmption
in favour of persons domiciled in the Portuguese possessions
proceeding from these possessior~s to India. However, persons
domiciled in the Portuguese possessions continued to be exempt
irom provisions relating to registration of foreigners.
214. -4s regards the i:ntry of I'ortuguese arrned forces into or
passage over Indian territory it was absolutely clear botti to the
Goveriiment of India and the Portuguese Governinent that such
entrp or passage was dependent eritirely on permission granted by
the Government of India within its discretion.
215. Thus, on the 30th Deccmber, 1947, the Portuguese Consul
at Bombay wrote to thi: Governnient of Bombay. (Indiari Annex
C. No. 58,1, p. 485). He askecl for general permission for armed
soldiers .to accompany the shroff (treasurer) of Daman whenever
he transferred money to Bombay, and to use their firearms in case
of any surprise attempt.. The Chief Secretary to the Government
of Bombay answered on the ~3rd February, 1948 (Indiart AnnexC. No. 58, 1,p. 486), referring to the letter of the 11th November,
1941 Indian Annex C.No. 58,I ,. 484),and stating that the existing
procedure should continue, unless there were special reasons for
a change. This existing procedure continued to be followed, per-
mission for the passage of thesoldiers being asked on each occasion
(Indian Annex E. No. 60), untiI October, 1952, when escorts
provided by the Indian Government took the place of the Por-
tuguese escorts. (Indian Annex C. No. 58,1, p. 486.)
216, Fro~n the above facts it will be seen that upon the inde-
pendence of India, the Government of India on its part maintained
the existing regime of traffic between India and the Portuguese
possessions, and that the first breachin the regime of easy inter-
course between al1the Portuguese possessions and the rest of India
was introduced by the Portuguese Government, It will also be
seen that in spite of the introduction of restrictions by the Portu-
guese Government and the general policy of hostility adopted by
the Portuguese Government towards the Government of India
and its nationals, the Govemment of India was slow on its part in
introducing similar restrictionas regards the entry of Portuguese
subjects into Indian territory.Itwill also be seen that travel from
Daman to Nagar Aveli was not on any special basiç: it forrned part
of thegeneral picture of intercourse between Portuguese possessions
and Indian territory. It also appears very clearly from the facts
stated above that the Government of India did not suddenly
impose restrictions upon the entry of Portuguese armed forces,
Portuguese officiaisandPortuguese Europeans in order to "isolate"
Dadra and Nagar Aveli. There was a long story of restrictive and
repressive legislation onthe part of the Portuguese Government
which resulted in the breakdown of any easy regime of intercourse
and travel between Portuguese possessions and Indian territory;
as a resuIt of this breakdown which, as has been said, was very
gradua1 and hesitating on the part of the Govemment of India,
there resulted the withdrawal of exemptions from Indian laws
relating to passports which had been made in favour of non-Euro-
pean Portuguese subjects, not only as regards entry into Indian
territory from Daman but also in relation to entry from other
parts ofPortuguese possessions. As regards the entry of Portuguese
armed forces, the facts recited above establish beyond a shadow
of doubt that neither the Indian Government, nor the British
Government before it, ever recognized the right of the Portuguese
Government to send its armed forces into or through any part of
the Indian territory; and that the Portuguese Government never
claimed that the British Government or the Governrnent of inde-
pendent India was not entitIed to refuse or grant such entry or
passage according to its discretion. This was the position as regards
entry into Indian territory from Daman or from Goa, when the
insurrection took place in Dadra and Nagar Aveli. Insurrectioni7~Dadra and Nagar AveEi and the esfablishmentof a
localde jacto Government
217. The Government of India emphatically denies al1 the
allegations and suggestjons in the Portuguese Mernorial that the
Government of India was in any way responsible for thi: events
which took place in Dadra and Nagar Aveli in July and August 1954
in connection with the liberation of the enclaves. The facts and
circumstances leading to the liberation are, to the best of the
knowledge and belief of the Govi:rnment of India, as hei-einafter
stated. Such of these facts as by their nature could not be within
the knowledge of the Government of India are stated on the basis
of contemporary records and eviilence which the Government of
India has no reason to disbelieve.
218. The reasons for the insurrection which took place against
Portuguese rule in Daclra and Nagar Aveli are not far to seek.
The people of Dadra and Nagar Aveli are of Indian race, the
great majority being Hindus, speaking the same language as the
inhabitants of the surrounding Indian territory in the State of
Bombay. The people of Daman and Goa, as also of Diu, are in
no way different from the people of the surrounding Indian
regions. The majority of the popuIation of Goa are Hindus closely
related to the Hindus of Maharashtra and Konkan in the States
of Bombay and Mysore. Furthcrmore, a large number of the
Christians in the Portuguese possessions are also of Indian race
and 'of the same kith and kin ;is Christians who left Goa and
settled on its outskirts, in the districts of Belgaum and Kolhapur
in the State of Bombay and North Kanara and Mangalore in
the State of Mysore. It is not therefore to be wondered at that
when the movement for independence started and grew in British
India and in the French possesçions, it should also have been
feltin the Portuguese possessions. Nor it is a matter of surprise
that the movement should have made ils largest impact in the
Portuguese possession of Goa, where a Goan cornmittee of the
Indian National Congress was set up as long ago as 1928 by an
engineer called Dr. Tristao Braganza Cunha.
219. No less than 150,000 Goans reside in India, out of which
at least 80 to go thousand residi: in the State of Bombay. Goans
in India have homes and relations in Goa and it is on reniittances
of their earnings in India that the substantial part of Goan
economy was founded. Goans wese not considered British subjects
before 1947 and the majority of them are not nationalç of Lndia.
220. Although the Goan movement for the liberatiori of the
Portuguese possessions in India dates from before tht: second
World War, it inevitably received a sharp stimulus frorn theBritish recognition of Indian independence at the end of the
war. In March 1946, a Goan political conference was held at
Bombay. This conference issued a manifesto which took note of
the principles of democracy and of self-determination solemnly
recognised by the British Government, and of the elections which
were heing held in India for a constitution making body, and it
demsnded the immediate grant of civil libcrties by the Portuguese
Government in India. The manifesto said: "We are assured of
the support of our brothers in British India with whom we align
ourselves in demandi~ig freedom for Our motherland." (Indian.
Annex ,4. No. z.) In the same month at a general meeting of
the Goa Congress Committee held in Bombay a resolution was
unanimously passed calling upon the Portuguese "to leave the
shores of Goa, Daman and Diu, so that uTe can achieve our destiny
in cornmon with the rest of India". (Indian Annex A. No. 3.)
Shortly afterwards, the people of Goa welcomed a leader of the
Indian National filovement, and when he was prevented from
addressing a meeting in Goa, subjecteci to indignities and dcported
to British India, there hegan in Goa an open campaign for civil
liberties.(Indian Annex E. No. 61.) Ina famous letter of 18th July,
1946, concerning the deportation of the Indian leader from Goa,
Mahatma Gandhi wrote to the Portuguese Governor-General
Mr. Jose Bossa: " .. .He has commanded my admiration for his
having gone to Goa andput his finger on its hlack spot. Inhabitants
of Goa can afford to wait for independence, until much greater
India has regained it ... Vour description of him as 'stranger'
would excite Ixughtcr, if it \vas not so tragic. SureIp the truth
is that the Portuguese corning from Portugal are strangers ..."
(Indian Annex A. No. 4.) Thereafter the csmpaign for civil
liberties, emancipation from the foreign rule and union with the
rnotherland developed in Goa in consonance with the principles
arid philosophy of Mahatma Gandhi. It came to be known as
the "Jai Hind" movement and took the form of mass civil disobedi-
ence, non CO-operation with governmental activities, boycott
arid peaceful agitation. Throughout Goa people held meetings to
demand civil liberties. These meetings were broken up by the
Portuguese police and military with considerable violence. Between
June and November 1946, about 1,500 Goans were arrested bv .
the Portuguese Government. They wcre held in detentio~~without
trial for long periods and subjected to severe beating. The leaders
were charged with treason, sentenced to long terms of imprison-
ment and deported to Portugal. These included Dr. Tristao Bra-
ganza Cunha, Mr. Purshottam Kakodkar, Mr. Luxmikant Bhembre,
Dr. Rama Hegde and Mr. Ignacio de Loyola, a11of whom tvere
sent to Peniche, an island prison off the coast of Portugal. About
eight prisoners were sent to Angola in Portuguese West Africa.
221, In 1947, the year of Indian independence, the Porfùguese
Government took strong measures to suppress the Goan liberation movement and introduced several thousand European and African
troops into the Portugiiese posserjsions. The result was that the
Goan liberation movement went underground in the Portuguese
possessions and numbers of Goans, fearing for their liberty, fled
jnto Tndia and made 1:heir way to Bombay to join the Goan
communities there.
222. The new Government of independent India loçt ilotirne
in taking up with the French and Portuguese Govcrnments the
question of the future of the French and Portuguese possessions
in India. A friendly settlement was reached with the French
Governmcnt, under which al1 the French settlements; Chander:
nagore, Po~ldicherr~, Iiarikal, Mahe and k'anam became merged
in the Indian Union in accordance with the wishes of their peoples.
The merger of these settlements in the Indian Union toctk place
in 1950 and 1954.
223. bleanwhile the Portuguese Government was refusing
absolutely to enter into discussions with the Goverriment of India
concerning the future of the Portuguese possessions. Not unriatural-
ly, this entirely negative attitude on the part of Portugal excited
strong feeIings both arnongst peoples of Portuguese possessions
and arnongst the Goans in Goa and in India. The Government of
fndia, hoivever, made it plain fi-om the first that, although its
objective %vasthe termination of al1foreign rule in India, it ~vould
seek to achieve this objective only 11ypeaceful means. Ia statement
made in Parlisment on the 25th August, 1954 ,oon after the Goan
liùeration of the enclaves, the Prime llinister of India reiterated
that India's policy \vas one of non-violence: "The policy that we
have pursucd has been, even as in. India under British rule, one of
'non-violence, alid we have fashioned our conduct accordingly. This
adherence to non-violence means : (ijthat we may .net abandon
or permit any derogation of Our identification iiviththe cause of
our compatriots under Portuguesi: rule ; and (ii) eclually, we may
not adopt, advocate or delibenitely bring about situations of
violence." (lndian Annex A. No. II).
224. Goans in Goa and in Bombay continued to voice their
wish for unity with' Inclia. In April 1948, Dr. J. M. Furtado was
arrested in connection with the activities of the "National Congress,
Goa". In Jiine 1948, fiIr. Wamail Desai was arrested foi- having
issued a publication of the "National Congress, Goa". In February
1949, Mr. Keshav Talaulikar was arrested. In hfarch 1950, Mr.
Divakar Kakodkar, a skhool teacher, was deported on the orders
of the Portuguese Minister for (3010niesto Cape Verde Islands,
"for holding views contrary to the security of the State". In
April 1950, Dr. Antonio Furtado, having been threatened with
deportation to Cape Verde Islands, lcft Goa and took refuge in
Tndia. In June 1950, Mr. nfadhav Bir, a teacher, was arrested for
having taken part in a political meeting. In December 1950, thePortuguese Government arrested Mrs. Zamhaulikar and Messrs.
Gajanan Desai, Prabhu Desai, Shirodkar, Verntikar, Costa, and
other Goan leaders. In 1951, the Portuguese Government arrested
Mr. Nilkant Kamat, and Mr. Gopinath Kurade, Dr. Carvalho,
Mr. Goculdas Keni, Dr. Victor Luis and Dr. Clementine George,
and Mr. Armando Pereira. In October 1951 , military tribunalof
the Portuguese Government passed a sentence in nbsentioon
Mr. Lambert Mascarenhas of the United Front of Goans. In Decem-
ber 1951, the Portuguese Government closed down for an indefinite
period the Almeida College following the setting of the subject
"The role of students in Modern India" for an essay test. (Indian
Annex E. No. 62.) In 1952, seven Goan political prisoners, Messrs.
Mayekar, Ticlo, Karapurkar, and four others were deported from
Goa to Portuguese West Africa. In 1953,Messrs. C. S. Lobo,P. S.
Lobo and R. S. Fernandez, Goans iiormally resident in Bombay,
but on ternporary visit to Goa, were arrested by the Portuguese
Government in Goa for having. taken part in the Goan freedom
movement in Bombay. In the same year, 1953, Professor Nicolau
Menezes, Principal of a School in S. Matias, fled Goa and sought
asylum in India after receiving a summons from Captain Romba,
the Chief of Police of the Portuguese possessions.
225, On the 7th August, 1953, the same Captain Fernando R.
Rornba, the Chief of the Police of the Portuguese possessions,
wrote to Mr. Francis Mascarenhas, President of the United Front
of Goans at Bombay, inviting him to Daman for discussions on
the future of the Portuguese possessions in India. Captain Romba
said in the letter that he was empowered by the Overseas Ministry
at Lisbon to discuss al1 political problems regarding Goa, Daman
and Diu. (Indian Annex A. No. 5.) After an exchange of telegrams,
and having received the necessary assurances, Mr Mascarenhas,
accompanied by Mr. Waman Desai, Secretary of the United Front
of Goans, and a party of four, left Bombay for Daman. At Daman
they were received by the Acting Governor. On the 13th August,
1953, at 3 a.m., an agreementRas signed. However, as Mr. Masca-
renhas and his party were leaving the building, they were suddenly
arrested by the police in the presence and at the orders of Captain
Romba, and the signed documents as well as other papers were
seized fromthem. After threedays of detention and rough treatment
Mr. Mascarenhas and his party were let off and conducted to the
border.
226. Early in 1954, the Portuguese authorities in Goa arrested
Dr. Gaitonde, an eminent surgeon, for having uttered the words
"1 protest" in response to a statement made by a speaker that
"Goa is Portugal", and at once deported him without any trial
to Portugal. In a note of the 15th March, 1954 ,he Government
of India pointedout to the Portuguese Government that the arrests
and deportation of Goans for professing pro-Indian sentiments were likeIy to have serious repercussions in India. (Indian Annex A.
No. 6.)On the 18th June, 1954 ,owever, the Portuguese Govern-
ment arrested over 40 eminent Goans, advocates, doctors and
professors, and subjected many others to interrogation. News of
these arrests produced tlie strongest emotions in the Goan commu-
nity of Bombay, and al1the different Goan parties (the Goa National
Congress, the United Front of Goans, tlie Goan People's Party
and the Azad Gomantak Dal), combined to form an Action Commit-
tee under the president~hip of Dr. Tristao Braganza Cunha. They
passed a resoIution lhat they would work for the liberatioil of the
Goan homeland, but at the same time they reaffirmed tht:ir faith
in the Gandhian principle of non-violence. (Indian AnneA. No. 7.)
227. In July 1954, Mr. Mascarenhas and Mr. liaman Desai,
president and secretary respectively of the United Front of Goans,
on whom an unscrupulouç deception had been practised by the
Portuguese authorities (see paragraph 225 above), entered the
village ofadra together with a small party of Goan compatriots.
An incident took place in front of the police station in Dadra
where a Portuguese police officer, Aniceto Rozario, opened fire
on the party with a riiachine-giin. From accounts received by
the Goans in India it rippears that after a time the Por-tuguese
officer's machine-gun went out of order and that thisinterruption
was taken advantage of by the people of Dadra to deal him with
severe and mortal blows. In the mêlée whichresulted another
Portugueçe police oflici:r receivelrl serious injuries to which he
succumbed a few days later. This was the only incident of violence
which took place in Dadra. (Indian Annex E. No. 63.)
228. The demonstration in Dadra developed into an active
liberation movement and after a few days, in the first week of
August 1954, the members of the Azad Gomantak Da1 and the
Goan People's Party, Ied by its leaders Mr. Viçhwanath Lavande
and Mr. Geroge Vaz, i:ntered Nagar Aveli. They met with no
resistance, the Portuguese Adrninistrator of Dadra and Nagar
Aveli, and his entire police force having left the administrative
capital, Silvassa, the previous day. The accounts received in
India make it absolutely clear that the Goan movement for
liberation of Nagar Aveli was entirely peaceful, (Indian Annex E.
No. 63.)
229. The people of Dadra and Nagar Aveli proclainied their
independence from Portilguese rule and set up an Administration
of their own. Thep requested Dr. Antonio Furtado, a Goan patriot
and former Administrator of the Communidades and Judge of
the Administrative Court of Panjim, to assume charge as Ad-
ministrator. He has cclntinued a.s Administrator to the present
day. His report on the Administration was published recently by
a Goan body in London (The Goa League of 374 Gray's Inii
Road, Lonclon, W.C. 1.)which, as stated on the back cover ofthe publication, "was founded on the 20th August, 1954, by
Goans resident in the United Kingdom to rvork for the freedom
of their Motherland from Portuguese Colonial rule". (Indian
Annex E. No. 64.)
230. This report states that soon after the liberation, a pro-
visional administration \vas set up, and three months after, in
November Igj4, a constituent assembly of thirty-five members,
The Gram ,Panchayat, was convened. In 1956, the local Pan-
chai-ats, or councils, having been created, 'the Gram Panchayat
was dissolved and the Central Assembly of People, the Varishtha
Panchayat, was organized with thirty-six members representing
different classes, religions, linguisticgroups andas. The Varishtha
Panchayat exercises the legislative function. The executive
function is exercised by the Administrative Council consisting of
the Administrator and eight heads of dcyartments. The Civil and
Criminal Tribunals and a Council of Appeal constitute the judiciary.
231.In Auguçt 1958, the people of Dadra and Nagar Aveli
will already have completed four years of self-rule. Reports have
reached India of progress and achievement of the people of Dadra
and Nagar Aveli in various fields of cndeavour-social, economic
and political. (Indian Annex E. No. 64.) The forests and "abkari"
(that is, taxes on the distillation and sale of liquor) constitute
the largest source of revenues of Dadra and Nagar dveli. By
husbanding the forests in an efficient manner and by irnproving
the system of "abkari" collection, the Administration has consid-
erably increased its revenues ivhich it has employed for the
benefit of the people.As against four schools before the liberation,
there aretoday fifty-one schools. The Administration has improved
the health services, introduced land reforms, and provided
assistance to cultivators. For the first time, a democratic regime
prevails in Uadra and Nagar Aveli.
232. On a number of times, the people of Dadra and Nagar
Aveli have requested the Governrnent of lndia to accept the
merger of the liherated territories iilto greater India.
233. At its inaugural session on the 25th Novembcr, 1954, the
Gram Panchayat of Dadra and Nagar Aveli, consisting of 25
membcrs, adopted a unanimous resolution "To express to the
National Government of India their patriotic will and fervent
desire to integrate these liberated territories into Indian Union
to realise and solidify its inalienable and imprescriptible territorial
and political UXITY." (Indian Annex E. No. 65.) Similar requests
were addressed to the Government of lndia by the Varishtha
f'anchayat, the Dadra and h'agar Aveli committee for Union
("Sanghatari Samiti"), the Administrative Council, and by the
Goans in Bombay. Towards al1 such requests the Government
of India has up to now adopted an attitude of reserve. 1
COUKTER->IE~IORIAI OF IXDIA (III58) 9s
234. On the 28th Uecember, 19j5,six days after the filing of
the Portuguesc Applic;ition, the Administrator of Dadra and
Nagar hveli, Dr. Antonio Furtado, issued a statement to the
press in which he said:
"The liberation of these territories was<karried out by Goans and
the people of these areas acting in whole-hearted co-operation with
each other. The estaldished Governrnent is now that of the people
of Dadra and Nagar Haveli, rid once and for al1 of the inefficiency
arid the corruption that marked the colonial administratjot! for the
past 170 years. The people are proud of the social and ticonomic
progress tkey have ;tchieved since JuIy 1954 and whatever the
Indian Governrnent says in this issue before Tlir Hague Court,
Dadra and Xagar Haveli will not accept a single Portuguese on their
soii at any time." (InclianAnnes E. NO.66.)
235. On the 15th January, 1956, a mass meeting \vas hcld in
Silvassa. This meeting unariimouçIy ipproved a resolutiori:
"The peoplè of Iladra and Xagar ~vveli gathered in this rast
. meeting witliout distinction of class and creed, proclaim, their
com1)lete liberation from the Portuguese colonialization and declare
before the UN0 that the right of libertyisirialienable and impre-
scriptible.
They declare nioreover tliat itis the duty of Hague Tribunal not
merely to observr: the spirit anrl letter of tUN0 charter but also
takeinto consideration the wisiies of the People of Dadra and Xagnr-
Haveli reprcsented hy their Panchayat, against which the fascist
Portuguese regirnc seeks to esercise military action.
'They emphatically lodge their protest against any act or contract
which may contribute towards the colonial subjugation of the people
. of Dadra and Nagar-Haveli as abject and invalid becnuse the
material and moral slavery of a people can never he the object of any
transaction and the history of tlie Portuguese in Asia, in the words
of lier owii historian lias been the liistoof yiracy.
They fiirtherdecl;u-e that even if the Goverriment of Indian
Union consents to di:;cuss at th: Hague the questions of her sover-
eignty such as of granting of passage to the Portuguese to recolonize
Dadra atid Nagar-Haveli, the peoplc of these territories solemnly
swear that tl-ieywill resisby al1means within their power and with
every sacrifice any* attenlptof the Portuguese to reoccupy these
territorieto strangle the precious fruits which the colonizers denied
and which tlic Liberation has restored-the sacred Liheration which
uras obtaiiied hy the people repelling the unjust and inl-iuman
domination of the Portuguese."
(Indian Annex E. Ko. 67.)
This resolution appears to have l~een re-adopted on the 19th April,
1956. (Indian Annex E. NO. 64.)
236. On the 14th April, 1.957, the people of Dadrn and Nagar
Aveli assemhled in large numbers and in a forma1 demonstration
"declared that aay verdict of the Court of the Hague on this point
wouid be irrelevant and null, because neither the peciple nor COUNTER-bIEMORI.4L OF INDIA (III 58)
g6
their representative body-Panchayat-or their de facto Govern-
ment were heard and convinced about this litigation arisen among
the third parties: Portugal on one side and India on the other".
This resolution reads :
"The people of Dadra and Nagar-Haveli gathered in a mass
meeting protest againstPortugal's pretensions and draw the attention
of the Hague Court and International public opinion to the
following:-
r. After Portugal had taken its complaint to the Hague Court
demanding free passage through Indian Territory to occupy Dadra
and Nagar-Haveli, the people of these territories protested that
any decision of that Court regarding the matter, would be irrelevant
and nul], for neither the people of these Liberated Territories,
neither its representative hody-the Panchayat--nor its de facto
Government were heard in the case u-hich is going on between third
parties: Portugal on one side and India on the other.
2. The present de fado Government of Dadra and Nagar-
Haveli is as respectable as the Government of the Portuguese
Dictatorship. Both the Governments were the result of aRevolution.
And so, just as the present Portuguese Government overthrew the
Democratic Governrnent of the Portuguese Conçtitutional Republic,
the people of Dadra and Nagar-Haveli overthrew the Portuguese
foreign domination and established their own local Administration,
which in a short period of a little over z years has done for the
regions what Portugal failed to do during alrnost two centuries of
its domination. Besides, the Portuguese Government established
itself inIndia by conquest and such a government can never be a
legitimate government but a dz facto government, for otherwise
the basis of legitimacy would be conquest or violence and the
inalienable and imprescriptible birthright of peoples would not exist.
3. The people of Dadra and Nagar-HaveIi, its Varishtha Pan-
chayat and the Azad Dadra and Nagar-Haveli Sanghathana Sarniti
several tirnes manifested to the Indian Government their desire
to integrate with the Indian Union. This request which has not
yet been considered by the Indian Government, leaves them
politically isolated from the rest of India. They, therefore, dernand
that either this integration be accomplished or the juridical and
political status of the present Administration of those Liberated
Territories be recognized.
4. Should the Hague Court reject Portugal's demand that Court
wilI merely have consecrated the spirit and the letter of U.N.O.
Charter which orders respect for the fundamentalrights and liberties
of Man and recognition of the political aspirations of the Colonial
or non-self-governing peoples and to assist them in the progressive
development of their free political institutions. Art. 1(3)and Art.
7304
5. ShouId the Hague Court, withont taking into consideration
the new political situation in these Territories, permit the Portu-
guese Government (who curbs the civil rights of its own people and
opposes the progressive liberation of its colonial peoples) to take
.its troops to reoccupy these liberated territories then in that case, the onlyrecourseleft the PEOPLEofDadra andNagar 1-Iaveliistoassert
their right of defence against the new oppression, by either organ-
izingtheirdefence, or hy requesting India's military help to prevent
that the old aggressor of Indian. Territory corne to reinstall itself
scriptible and inalienable right of self-detemination."e impre-
The above resolution together with a letter was sent by "The
Pr esident, Varishtha Panchayat , free Nagar-Haveli and Dadra"
to "Advocate Sri Setalcvad, C/o. Secretariat of International
Court of Hague, Netherlands" and received by the India11 Dela-
gation at the time of the Oral Hearing onthe Preliminary Objection
of the Government of India. In his letter the President of the
Varishtha Panchayat wrote:-
"With due respect 1 take the liberty of forwarding to your
Excellency a copy of the resolution unaairnously approved at a
mass meeting of the people ofNagar Haveli and Dadra on April 14
last in Silvassa, the seat of the Administration, together with a
copy of the pledge taken on the same day beforc the statue of
Mahatma Gandhi.
It is the fervent desire of the people of these Territories to see
their liberation, which is their birthright, defended by the U.N.
Charter, recognized and confirmed.
As the President of the Varishtha Panchayat 1:appeal to your
Excellency to interpret before the world the just sentiments of
our People." (Indian Annex E. No. 68.)
237. However, the Government of India has up to the present
maintained an attitude of reserve towards those requests. It has
limited its contacts with the administration of Dadra and Nagar
Aveli to what was inevitable for the solution of day-tu-day problems.
While in permitting such contacts, it has recognized the existence
of the de jactoadministration, it has done so only to the extent of
establishing relations with it on a provisional basis through local
officials insuch matters as police, posts and transport.
235. After the insurrection in Dadra and Nagar Aveli, and
the establishment of a de facto local Government there, the ('overn-
ment of India could not, in keeping with its principles in regard to
movernentç for liberation from foreign colonial rule in parts of the
Indian continent, take the responsibility of allowing.entry on Indian
territory to Portuguese armed forces, officials, etc., in order toput
down by force people who had freed themselves from Portuguese
rule, or in any manner to interfere with the functioning of the
institutions set up by these people. CONCLUSIONS
239, Frorn the above account of the Maratha period, the British
period and the post-independence period, the following facts
emerge :-
(1) the documents of 4th May, 1779, 11th January, 1780
and 17th December, 1779, did not constitute a treaty
between the Marathas and the Portuguese;
(2) these documents did not mention any right of passage
between Daman and the encIaves;
(3) the Marathas never ceded to the Portuguese any part
of the territory of the enclaves;
(4) the Portuguese never received from the hiarathas sover-
eignty over any part of the territory of the e~iclaves;
(5) the rights connected with the enclaves granted by the
Marathas to the Portuguese were merely rights to receive
revenue ;
(6) these rights were revocable at the will of the Marathas;
(7) these rights were in fact tvithdrawn by the Ievy of
attachment on no less than three occasions;
(8) on the eve of their conquest by the British the Marathas
had resolved to revoke these rights;
(9) the British Government entirely declined to recognize
as binding upon them any privileges which might have
been granted by the Marathas to the Portuguese affecting
territory which subsequently became British (in fact,
there had never been any such privileges) ;
(IO) throughout the period of British rule, the Portuguese
never claimed any right either of passage for persons or
of transit for goods over any British territory (except
under the Treaty of 1878, and special agreements of very
Iimited scope mentioned above) ;
(II) throughout the period of British rule, the Portuguese
frequently acknowledged, by making applications, by
seeking concessions and in other ways, that they had no
right eitherof passage or of transit over British territory;
(12) throughout the period of British rule, the British regarded
passage of Portuguese persons and transit of Portuguese
goods over British territory as matters lying entirely
withintheir domestic jurisdiction, to be aIlowed, forbidden
or controlled according to considerations of policy;
(13) the Portuguese acquiesced in this view held by the British ;
(14)after the transfer of power in 1947, the Portuguese did
not (until making their application to the Court) claim any right eitherof passage or of transit over Indian terri-
tory;
(15) the Indian Gcivemment, like the British Government
before them, regarded such passage and transit as lying
entirely within their domestic jurisdiction, to be allowed,
forbidden or controlled according -o considerations of
policy ;
(16) the Portuguese continued in this view;
(17) after the independence of India, the Portuguese intro-
duced a breach in the traditional regime of easy inter-
course which e:tisted up to that time between Portuguese
posçessions and Indian territory;
(18) the Portuguese Government compelled the Indian Govern-
ment to introd.uce similar restrictions and to tighten up
rules and regulations relating to entry into India from
Goa and Daman ;
(19) after the insurrection iri Dadra and Nagar Aveli, the
Indian Goverriment adopted an attitude of reserve
towards requests both of the Portuguese Government
for passage of armed forces from Daman to Dadra and
Nagar Aveli in order to re-subjugate the people of these
enclaves, and the requests emanating from the people
of the enclavesthatthe Government of India should merge
the tcrritories of Dadra and Nagar Aveli into the territory
of India. PART III
THE ANALYSIS OF THE PORTUGUESE CLAIM
240. The Portuguese G ment, in paragraph 2 of its Appli-
cation, defined the subje@ of the present dispute as "the right
of Portuguese officials and nationals, as well as foreigners authorized
by Portugal, to cross India on their way between the Portuguese
temtory of Dam50 (littoral Damao) and the Portuguese enclaved
territoriesof Dadrh and Nagar Aveli, and between each of the
two last mentioned territories". In paragraphs5to 8,it referred to
this alleged right as having been created under the "Treaty of
Punem of 1779" as a natural and indispensable cornplernent of
Portuguese sovereignty over the enclaves. In paragraph g it
asserted that this alleged right has been exercised for nearly two
hundred years without any difficulties by officials and private
citizens of Portugal and by foreigners authorized by Portugal.
In paragraph ro it claimed that the alleged right "containç in
particular the faculty of transit fored forces or other upholders
of law and order, to the full extent required for the effective
exercise of Portuguese sovereignty" ; and it maintained that it
was with this broad scope that the alleged righhad heen exercised
throughout the penod of nearly two hundred years since the
"Treaty of Punem".
241. In paragraph 20 of the AppIication the Portuguese Govern-
ment further defined the alleged right as entailing "the right of
transit of persons and goods, including armed forces or other
upholders of law and order, without restrictions and difficulties
and in the manner and to the extent required by the effective
exercise of Portuguese sovereignty in. the said territories (DadrA
and Nagar Aveli)".
242. In the next paragraph, the Portuguese Government main-
tained that the alIeged right of passage is derived from three
distinct legal sources (a) The "Treaty of Piinem", (b) custom
both local and general and (c) general principles of law. And the
Portuguese Government concluded its Application by asking
the Court :
"(a) To recognizeand declare that Portugal isthe holorbene-
ficiarof arightof passage between its territory of Damâo (littoral
Damao) and its enclaved territories of Dadraand Nagar Aveli,
and between each of the latter, and that this riglit comprises the
faculty of transit for persons and goods, including forcesor
other upholdersoflaw and order, without restrictiorsdifficulties
and in the manner and to the extent requiredby the effective
eserciseofPortuguese sovereigntyin the said territories. COUNTER-MEIIIORIAL OF INDIA (IIIj8) 101
(b) To recognize and declare that India has prevented and con-
tinues to prevent the exercise ofthe right in question, thus com-
mitting an offenceto the detrimtmt of Portuguese sovereignty over
the enclavesof Dadra and Nagar 'ilveliand violating its international
obligationsderiving from the above mentioned sources and from any
others, particularly treaties, which maybe applicable.
(c) To adjudge that lndia should put an immediate end to this
de jacta situation by allowing Portugal to exercise the above
mentionedright of passage on tht: conditions herein set out."
243. At the conclusio~i of its 3Temorial the Portuguese Govern-
ment defined its claim in similar, though not identical terms.
It asked the Court to adjudge and declare:
"(a) que le Portugil a un droit de passage sur le territoire de
l'Inde en vue d'assurer les liaisons entre son territoirede Dam50
(Damgo du littoral) et seç territoires enclavésde Dadra et de Kagar
ilveli;
(b) que ce droit comporte le transit des personnes et des biens,
ainsi que le passage des représentants de l'autorité et des forces
armées nécessairespour assurer le plein exerclce de lasouveraineté
portugaise dans lesterritoiresen question".
It further askcd the Court to adjudge and declare that the
Government of India must respect this alleged right of passage,
must abstain from any act calculated to obstruct or compromise
its exercise and must prevent any such act from being committed
on Indian territory.
244. The general outline of Portugal's claim is therefore clear.
She claims rights of passage over Indian territory between the
enclaves and Daman, without restrictions or difficulties, for Por-
tuguese armed forces, police and officials, for Portugueçe private
individuals, for forcigners authorized by Portugal and 'for goods
to the full extent necessary for the effective exercise of Portuguese
sovereignty in the enclaves.
245. In her Application and JiemoriaI, Portugal's claim had
been expressed as an unqualified claim to a right of transit
"without restrictions or difficulties" in the manner and to the
extent required for the effective exercise of Portuguese sovereignty
in the enclaves. In her Observations and Submissions on India's
Prelirninary Objection tliere was a sharp change in the presentation
of the claim. Then it was emphatically asserted that Portugal
does not claini any "right of sa\-ereignty" over Indian territory
but only a bare right of transit \vithout any immunity from the
exercise of India's territorial jurisdiction:-
"The proceedings of which the Court is at present seized are in
no wise directed towards securing a recognition that Portugal
possesses any sovereign rights over Indian territory and that the
territorial sovereignty of India is thereby impaired to the benefit
ofan alien State." (Observations and Submissions, paragraph 110.) "On Indian territory, al1 the attributes of sovereignty and a11
the powers it comprises-legislative, administrative, judicial-
belong therefore to India and to India alone. Portugal does not
claim any portion thereof and in no way contests that India has the
right to exercise them. But she contends that, in exercising them,
India must conform to the obligation not to put obstacles in the
enclaves of Dadra and cNagar Aveli or between those enclaves and
the Portuguese territory of Damgo". (Ibid.paragraph 116.)
"The Portuguese Government has never contended that its
nationals and officialshad any right of access to Indiari territory,
or that they could move freely therein.
Theright it claims is simply a right of transit across that terri-
tory-a right of international transit, since it isa matter of a
passage the starting point and the finishing point of which lie
outside the territory crossed-a right of international transitfor
whichpuhavee no other physical possibilitysoffcommunicating withies
the rest of the territory of the State to which they belong(Ibid.,
paragraph 1x7.)
These assertions were repeated with minor variations at the
oral hearing when it was insisted that Portugal claims no right
of sovereignty of any kind over Indian territory but only that
India is under an international obligation towards Portugal with
respect to the territory. (Oral Proceedings, IV, pp. 174-177.) More-
over, Portugal vigorously protested that she has never at any time
claimed anything more than a right not to have her necessary
communications with the enclaves blocked by India:-
"Ce que nous demandons, c'est que Ie Gouvernement indien ne
rende pas impossible l'administration des enclaves portugaises en
bloquant les voies de commiinications qui sont indispensables.
Nous n'avons jamais eu d'autres prétentions. Nous n'en avons
jamais eudans le passé, depuisque lesenclaves nous appartiennent,
c'est-à-dire depuisledernier quart du r8me siècle. Nousn'en avons
jamais eu d'autres, àil'époquemahratte, ni au temps où l'admini-
stration de l'Inde étaitaux mains des Britanniques, ni depuis qu'elIe
appartientà laRépubliqueindienne. Et nous n'en avonspas d'autre
dans le présent litige". (Oralhearings, IV, p. 177.)
246, Portugal's various descriptions of her alleged rights of
passage are singularly unconvincing for various reasons. One
reason is that Portugal's assertion that right back to the time
of the Maratha Rulers she has never claimed anything but a
bare right of transit without immunity is in complete contradiction
with the historical facts. For example, in a ietter of 11th November
1818, the Portuguese Governor of Daman claimed that under the
"Treatÿ of Punem" the transport of articles produced in Nagar
Aveli to Daman was "absolutely exempted from all duties and
taxes, Ieviable under all other circumstances". (Indian Annex C.
No. 33, 1, p. 295.) A similar claim was made as late as 1859 in a memorandum by the Government of Goa which said that the
"Treaty" contained a "clause which establishes the widest exemption
and freedom of trade between the Portuguese and Maratha domin-
ions". (Indian Annex C. No, 35, 1, p. 344.) Accordingly, although
there is not in fact tht: slightest basis for these claims in the
provisions of the "Treaty of Punern", it is totally incorrect to Say
that Portugal has never at any time claimed any immunities
from the exercise of Intlia's territorial sovereignty in connection
with the alleged rjghts of passage.
247. Another reason iç that, even if Portugal does today present
her daim to the Court as one concerning only simple rights of
transit without any exemptions from India's territorial sovereignty,
it is impossible to regard these iilleged rights of transit as not
-involving limitation upon or dercigation from India's exercise of
her sovereign rights over the teri-itory. In her Observations and
Submissions (paragraph 107) Portugal in the most forma1 manner
~ecognized that India alone is competent to exercise the attributes
of sovereignty over Indian territory, including the territory lying
between Daman and the enclaves. 'The"attributes of territorial sov-
,ereigntyH of course comprise such rights as the right to regulate and
forbid the e~itry and exit of persons and goods across the State's
frontiers, the right to regulate the movement of perçons and goods
inside the frontiers, the right to 1r:vycustoms and other taxes, the
'right to apply health, ciirrency and police regulations, the right to
exercise civil and crimi11;iljurisdiction, the right to adopt neutrality
measures in time of wat or civil insurrection, the right to expro-
priate land for public purposes, and many other similar rights.
In opposition to these rights of sovereignty possessed by India
over the territory between Daman and the enclaves, I'ortugal
claims ~ights of passage without restrictions or difficulties for
Portuguese armed forces, policri and officials, for Portuguese
private individuals, foi foreigners authorized by Portugal and
for goods, to the full extent necessary for the effective exercise
of Portuguese sovereigiity in the enclaves. These alleged rights
of passage must evidently impinge upon and derogate from India's
sovereign rights over the territoi-y concerned.
248. Portugal, as India emphasized at the oral hearings on the
Preliminary Objection, has been singularly vague about the limits,
conditions and modalities of her alleged rights of passage over the
territory of another State. Al1that Portugal says isthat she clairns
the rights of passage "to the full extent necessary for the effective
exercise of Portuguese sovereignty in the enclaves". The first point
that naturally arises is,who isto decide as to what uses of the alleged
rights of passage are necessary for the effective exercise of Portu-
guese sovereignty in the enclaves? 1s the final word to lie with
India or with Portugal? Unlesç the decision lies with Portugal,
Portugal cannot be considered to be claiming "rights" of passage104 COUNTER-MEMORIAL OF INDIA (III 58)
at all. But, if Portugal is accorded the right to declare the passage
of given persons or goods to be necessary for the effective exercise
of Portuguese sovereignty in the enclaves, and to demand that
their passage be allowed, it reaIly becomes impossible to Say that
there is no derogation from India's right to exercise her territorial
sovereignty. For India must then in part surrender to Portugal her
sovereign right to regulate the penetration of her frontiers by
foreign persons and goods. It is simply not true to say, as Portugal
said in her Observations and Submissions and at the oral hearing,
that India is only placed under an obligation not to put obstacles
in the way of Portugal's neceçsary communications between Daman
and the enclaves. If Portugal may demand and insist upon the
passage of such persons and goods as she declares to be necessary
for the exercise of her sovereignty in the enclaves, it is inescapable
that India's exercise of her sovereignty at her own frontiers and
within her territory will be subordinated to the sovereign will of
Portugal.
249, Suppose for example that Indian legislature decides as a
matter of genersl policy to prohibit the import into Indian territory
of arms or of alcoholic liquor or of a yarticular narcotic drug, and
that Portugal thcn claims the right to transport specified amounts
of the prohibited goods to Dadra or Nagar Aveli. No customs
frontier is maintained between the enclaves and the surrounding
Indian territory, so that once the goods have reached the enclaves
there is nothing to hinder their introduction into Indian territory.
If Portugal may assert a right of transit for the goods in question,
India will be bound to subordinate the execution of her sovereign
policies in hcr own territory to the policies of Portugal with respect
to the enclaves.
filutatis mutandis, sirnilar considerations would apply to the
export of goods and to the transit of persons to and from the
enclaves. Nor is this problem by any means an academic one, since
conflicts of policy of this kind have arisen in the psst, for example
in connection with the transit of arms, dates for distillation of
liquor, and of salt. Accordingly, it is a complete falIacy to speak as
Portugal does of her alleged rights of passage between Daman and
the enclaves as being rights of transit without immunity and
involving no derogation from India'ç rights to exercise her sover-
eignty over the intervening Indian territory.
250. In the North Atlantic Fisheries Arbitration, Counsel on both
sides accepted that the power to exclude foreigners from entry
into the territorial waters is a right of sovereignty and that a
treaty clause restncting that power constitutes a limitation of,
and derogation from, the territorial sovereignty of the State in
question (see paragraphs 262 and 278 below.) Ifthat is true of entry
into territorial waters,t iscertainlyno less true of entry across land
frontier. Portugal's so-called right of transit without immunity from India's exercise of her territorial sovereignty is, in fact, a
contradiction in terms. Either there is no'legal right in Portugal
or India's sovereign right to control entry through her froritiers is
pro tnnto cut dom. It is pure casuistry to argue, as Portugal does,
that India is not called iipon to accept a limitation upon hi:r terri-
torial sovereignty but merely to refrain from obstructing the
transit of Portuguese trocips, officiais, etc.,sofaras may be necessary
for the effective exerciseof Portuguese sovereignty in the enclaves.
At the borders of Daman runs the Indian frontier. In principle,
control of passage across the frontier is a sovereign right of India
and Portugal is daiming to set aside that sovereign right in her
o~vnfavour for her own purposes. :Nordoes it in anp way alter the
case to stress that it isonly entry Ior the purpose of transit. that is
claimed, not entry for t.he purpose of access to Indian territory.
The limitation of .temtorial sovereignty at the frontier and on the
transit route is still the same.
251. Indeed, Portugal's emphatic denial that she claims any
right of access to Indian territory is impossible to accept. For the
distinction which she dsakvsbetween a right to cross the Daman
frontier for the purposi: of transit to the enclaves and for the
purpose of obtaining access to Indian territory is an extrernely
hollow one iri the light cifthe actiial circumstances of the enclaves
and of the surrounding Indian territory since the earliest times. As
I has been pointed out in Part 1, the enclaves have always been
completely open to the: surrounding Indian territory. No fence
or other barrier has ever divided the enclaves from lndian terntory.
No customs or police cordon has ever been maintained around the
enclaves and unfenced roads and paths connect them with Indian
territory. Moreover, the roads and paths between Daman and the
enclaves are equally unfenced and unguarded. A right of transit
to the enclaves has thei-efore always meant in practice a right of
access also to Indian territory, and on that account the British
and Indian Governments have nlways treated the enclaves as
part of India for administrative ~~urposes.
252. In fact, the open regime always applied to the enclaves
and to the roads and paths leading to them from Damari rnakes
the Portuguese claim quite unrealistic in so far as it concerris rights
of transit for private inùividuals (including foreigners authorized by
Portugal) and for goods. Daman is a sea-port open to ocean-going
as well as to local shipping and the enclaves giving unrestricted
access to Indian territory lie a few miles from Daman. In this
situation the rights of transit claimed by Portugal are much the
same thing as rights for the entryand exit of persons into and from
Indian territory and for the passing of goods into and out of Indian
territory. Hom completely intoletable this situation would have
been for the British and Indiari Governments if Portugal had
possessed the rights of transit which she now claims is shown ~4ththe utmost cIarity in the officia1correspondence between the Britisli
and Portuguese authorities subrnitted to the Court in Part II above
and in Indian Annexes C and E. The correspondence reveals a
constantly recurring cycle of a Portuguese request for a concession
in regard to the import or export of some commodity, a British
concession, a Portuguese abuse of the concession, a British with-
drawal of the concession. It also reveals that the British regarded
the abuse of any concession as almost inevitable owing to the facts
of the situation. Their only protection against serious losses of
revenue lay in their power to withdraw the concession at will by
measures taken at the Daman frontier. On some occasions these
rneasures took the form of a reirnposition of duty at the Daman
frontier; on others they took the form of a total prohibition on the
irnport or export of the commodity concerned. Having regard to
the easy travel regime which prevailed for much of the time, the
entry and exit of perçons across the Daman frontier did not raise
the same acute problems as in the case of goods. But in times of
crisis, like the Indian Mutiny and the two world u7ars,the British
Govemment asserted full powers to control, restrict and even
prohibit the crossing of the Daman frontier; and from 1914 onwards
the British Government, without obtaining the concurrence of the
Portuguese Government, increasingly tightened up the regulation
of movement across the Dainan frontier.
253. In short, the Portuguese claim to the transit of private
individuals and goods simply does not correspond to the realities
of the situation. The peculiar position of the enclaves within
Indian territory a few miles frorn Daman could only be tolerable
to the British if either they maintained a customs and police
frontier round the enclaves or they retained full and absolute
powers to prohibit and regulate traffic at the Daman frontier,
As the British themselves pointed out tothe Portuguese authorities,
it was far more important to the people of the enclaves that they
should have complete freedom of access to the surrounding Indian
territory than that they and their goods should be free to cross
the Daman frontier. The solution adopted by the British from
the earliest tirnes, therefore, was to Zeave the enclaves open and
to assert full and absolute powers to prohibit and regulate traffic
at tlie Daman frontier.
254. The Portuguese clairn to rights of transit with regard to
private individuals and goods made it even less plausible in relation
to the peculiar situation of the enclaves by reason of its extensive
and largely undefined character. The transit of foreigners is
limited to those authorized by Portugal. Otherwise, no limit
appears to he put by Portugal either upon the kind of private
individuals or the kind of goods for which transit iç claimed as
of right. Nor are we told anything of the quantities of the goods
for which the right to transit is claimed except that the right isclaimed to the full extent necessary for the effective exei-cise of
Portuguese sovereignty in the en1:2aves.Who is to decide what
this means i~i terms of the transi.t of persons and goods to the
enclaves? India or Portugal? Nor is anything said about import
and export duties, except that 110 exemptions are claimed by
Portugal.
Yet Professor Bourquin said in his Hague Academy lectures in
1924(L'Organisationinternationalti des Voies de Com~launication,
Recueil des Cours, 1924, Vol. 4, p. 194) that the limitation of the
territorial sovereignJs power to tax goods in transit is "a precious,
and sometimes even indispensable, adjunct of freedom of transit".
Thus, to put the matter at its Iowest, a regime of liability to
import and export duties at the frontier is more consistent with a
system in which transit t:skes place by permission than one in which
it takes place as of right. Nor, again, does Portugal Sayanything
about the transit being confined to a particular route or about
any other conditions applicable to the transit of either persons
or goods. The absence fro~n Portugal's claim of any mention of
special conditions or modalities for the exercise of the alleged
right of transit for individuals and goods must also be considered
as more consistent with a system of permission than legal right,
having regard to the extreme danger of abuse resulting from the
open character of the rouies and of the enclaves themselves.
255. The Portuguese daim is made even Iess realistic iri so far
as it concerns the transit of arrned forces, police and officiais
without immunity from the exercise of India's territorial sover-
eignty. The passage of foreign troops and police, especially in
formed bodies, across a State's territory is a matter of the greatest
delicacy at any tirne and the bits, conditions and modalities
of a right of transit for foreign troops and police are of the greatest
concern both to the territorial sovereign and to the Statepossessing
the right. Yet in the present instance Portugal says virtually
nothing about the limits, conditions and modalities of her alleged
right, True, she says that she possesses a right of transit across
Indian territory for Portuguese armed forces to the full extent
necessary for the effective exercise of Portuguese sovereignty.
But such a daim may inean very different things. 1s the alleged
right of transit, for example, confined to sending individual
members of the armed forces and police or, at most, small squads,
across Indian territory? Or does it extend to sending ~vhole
platoonr, companies, regiments or corps of troops and police? If
transit is indeed claimed for troops and police in large formed
bodies, is there any limit to the numbers of soldiers or police
who may be in transit at any one time? Are the troops limited
to their side arms or does Portugal claim transit for artillery,
tanks, asmoured cars and ammuiiition? These are not academic
questions. They radically affect the nature of the right claimed,and the vague, undefined right of transit for her armed forces
and police which is apparently claimed by Portugal takes no
account of the vital interest of the territorial sovereign in the
mat ter.
256. Nor does Portugal make her claim to transit for her armed
forces,poIice and officiah any more realistic by emphasizing that
she only claims transit \vithout immunity from the exercise of
India's territorial sovereignty. \;mat does this transit without
immunity mean in practice? Presumably, it means that they,
their baggage and equipment are subject to examination at the
Daman frontier and in principle also at the boundaries both of
Dadra and of Nagar Aveli? Presumably, it means that their
officia1papers are subject to inspection by Indian security officers.
Presumably, it means that their baggage, equipment and supplies
are Iiable to Indian import and export duties at the various
frontiers and that their arms and ammunition are subject to the
strict provisions of the Indian Arms Act ivhich prohibits irnport
except under licence. Presumably, it means that if a soldier
cornmits a crime or tort against an Indian while in transit, India
has jurisdiction. And what of the discipline of the forces in transit?
Presurnably, transit without immunity means that, if a Portuguese
soldierstrikes a comrade en route, India rnay exercise jurisdiction?
Presumably, it means that, if the Portuguese commanding officer
arrests the soldier for breach of discipline, the soldier may bring
an action in the Indian Courts for unlawful arrest? Again, al1
these points are not academic points. They are of direct practical
concern to both States, to the territorial sovereign and to the
state possessing the right of transit.
257. Portugal's claim to a right of transit for her armed forces
without any immunities from IndiaJs sovereignt~ would involve
a strange derogation from the customary Lw- concerning the
immunities of foreign troops and also from the practice of States
in regard to such immunities as it is found in the many treaties
dealing with this matter. Under cuçtomary law foreign troops are
exempt from the supervisory jurisdiction of the local sovereign
in regard to their own interna1 discipline (see Barton, British
Year Book of International Law (1949) Vol. 26, pages 380-413).
What, if any, further immunities from the local jurisdiction are
possessed by foreign troops under customary law is a point which
is so controversial and the whole question of the legal regime
applicable to foreign troops is of such delicacy that it is invariably
covered by specific agreements (see Barton, op. cit., and British
Year Book of Inte~national Law (rg50), Vol. 27, pages 186-234).
The right of transit claimed by Portugal is not one exercisable
on a single occasion or only over a brief period. It is a perpetual
right of transit exercisable repeatedIy as and when Portugal
demands. That such a right should exist without definitions ina treaty is, to Say the least, highly improbable. When, in addition,
Portugal's formulation of the right departs in a material particular
from the recognized position of foreign troops in customary law,
it really becomes impossible to credit the existence of the alIeged
right.
258. The Government of India accordingly submits that, from
whatever angle it is viewed, the right of transit claimed by Por-
tugal includes so many alternatives and variations that it is
impossible to discover the real nature of the Portuguese claim
or what is the real basis for it.
259. The Government. of India further submits that the right
of transit claimed by I'ortugal is not capable of application in
practice between India and Portugal without its limits, conditions
and modalities first being settled. Portugal's simple forniulation
of her claim as one to a right of transit without immunity for
the exercise of her sovereignty in the enclaves is nol in reality
a claim that the Court should enforce an established and known
right. It is a claim that the Court should oblige India to come
to terms with Portugal concernii~g transit between Daman and
the enclaves-a claim that the Court should oblige India to
negotiate and conclude an agreement with Portugal in regard to
the transit of armed forces, police and officials, for private indivi-
duals and for foreigners authorized by Portugal and for goods.
Even if the Portuguese claims were to be held to be well-founded
in principle, al1 the lirnits of the alleged right of transit and al1
the conditions and motlalities of its exercise would still remain
to be settled; and they can only be settled by a new agreement
betu~een the Parties. PART IV
THE PRESUMPTION AGAINST RESTRICTION UPON THE
EXERCISE OF TERRITORIAL SOVEREIGNTY
260. Portugal's claim, as will be shown later, is essentially a
claim touching India's territorial sovereignty. It follows, in the
submission of the Government of India, that the fundamental
legal norm to which the Court must first have regard is the principle
of the exclusive competence of the State in regard to its own terri-
tory. The comprehensive and fundamental nature of this principle
was strongly ernphasized by Chief Justice Marshall in the Schooner
Exchange Case in the Supreme Court of the United States (1812,
7 Cranch 116):-
"The jiirisdiction of the nation within its own terriisneces-
sarily exclusiveand absolute.It issusceptible of no limitation not
imposed by itself. Any restrictioupon it, deriving validity from
an external source, would imply a diminution of its sovereignty to
the extent of the restriction, and an investmeof that sovereignty
tothesameextent inthat power whichcould imposesuch restriction.
-4lexce$tz'ons,therefore,to full and completepower of anation
within ifs ozun tevrâtoriemzrst be traced up to the coîzsenO/ the
nation itself. Thecan flow from no otherlegdimate sozdrce."
261. The clear implication of the Chief Justice's words is that
there is a presumption of law in favour of the exclusive cornpetence
of a State in regard to its own territory and that the burden lies
upon any State claiming rights over another's tesritory to prove
the specific consentofthe territorial State to the grant of the alleged
rights.
262. Chief Justice Marshall's opinion that restrictions on a
State's territorial competence are only to be established by proof
of itsspecific consent to their creation has frequently been echoed
in the jurisprudence of international tribunals. In the North Atlantic
Fishe~ies Arbitrafion (1910, Wilson, The Hague Arbitration Cases,
page 134) a Treaty of 1818 between Great Britain and the United
Stateshad granted to United States fisherrnen the right to fish in
Canadian bays. The United States had contended that the Treaty
amounted to a grant of an international servitude detracting from
the sovereignty of Great Britain and limiting her exclusive right
to regulate fishing within her waters. The Tribunal, in declining
to deal with the case by reference to the doctrine of servitudes, COUNTER-MEMORIAL OF INDIA (III58) III
said that a servitude in international law predicates an express
grant of a sovereign right and that the doctrine of servitudes could
only be affirmed on the express evidence of an internationalcontract.
The'United States, however, had also contended that, quite apart
from any question of servitude, there must be some point beyond
which Great Britain, in making regulations for the Canadian
fishery, was not competent to go, or could not properly go, without
infringing the rights of lJnited States fishermen under the Treaty.
As to this contention thr: Tribunal said (page 168) :-
"A line which urould limit the exercise of the sovereigiity of a
State within the limits of its owri territory cnn bedrawn only on the
ground of expressstipulation and ~otby implication /rom stipulations
concerning adioerent sztbjectmatter."
This pronouncement, it is to b~:emphasised, was made simply
with reference to a limitation upon the exerciseof territoriul sover-
ezgnty and quite independently of the Tribunal's discussion of
international servitudes. Its relevarice in the present case is cibvious.
For what else is Portugal doing than clairning to limit the exercise
of India's territorial çovereignty in regard to transit between Daman
and the enclaves, not on the grouncl of an express stipulation in
the "Treaty of Punem" but by mere implication from stipulations
in that alleged treaty cclncerning :iquite different suhject matter,
namely, a grant of the revenues of certain vilIages?
263. The famous dicturn of the I'ermanent Court of Interriational
Justice in the S.S. Lotus Case (1927~ Series A, Na. IO, page 18),
that restrictions upon the independence of a State are not to be
presumed, was enunciated with reference to a. restriction on the
exercise of 'territorial sovereignty alleged to exist.under customary
international Iaw. This principle finds expression also in the rule
of interpretation of treaties whereby, in case of doubt, a treaty is
to be interpreted restrictiveI~7so as not to impose a limitation upon
the exercise of territorial sovereignty. In the Free Zones Case(1930,
Series A, No. 24, pp. II:-~z), dealing with Switzerland's contention
that the establishment tiy treaty of a free customs zone precluded
France from collecting other forms of taxes at the political frontier
of the free zone, the Permanent Court said:-
"VJhereas, tlmugh the settlement to be prescribed by tlie Court
with regard to al1the questions involved by the execution of para-
graph 2 of Article 435 of theTri:aty ofVersailles,must respect the
rights which Switzerland derives from the provisionsof tlietreaties
of 1815 and other supplementar-yinstruments relating ta the free
zones, thissettlemeni must also respect the sovereignty of France
over the territoriesiri question;as this sovereignb is completeand
unimpaired in so jar as it is not limited by the aforesaid treaiies;
as no obligationgoing beyondthesekeatzes can be imposed on France
~c.itho~Wterc~)ftsent; "Whereas it is in the light of the foregoingconsiderations that the
question of the so-called "control cordon" (cordonde surveillance)
must be envisaged; as France's right to have a police cordon at the
political frontier of the zones has hardly been questioned by the
Swiss Government; as, on the other hand, the latter disputes the
right of France to collect duties and taxes at this frontier, even if
these charges are not duties on the importation or exportation of
goods, but are duties and taxes which are also levied on the same
articles produced or manufactured in France; as such a restriction
does mot rsecessarilyfollow from the obligalion contractedby Franca
under theprovisions of thetreadieof1815and theothersuppkmentury
instruments relating to the free zones, and as, in case of doubt, a
limitation of sovereigntymusfbe construedrestrictiveZy."
The Permanent Court had occasion to revert to this principle
at a later stage of the same case (1932 S,eriesA/B, No. 46, at page
166) when the Swiss Government challenged the legitimacy of a
certain importation tax levied by France on the ground that it
infringed the spirit of the free zones agreements. The Court strongly
reaffirmed the principle :-
"It follows from the principle that the sovereignty of France is
to be respected in so far as it is not limitedby her international
obligations, and, inthis case, by her obligations under the treaties
of 1815 together with supplementary acts, that no restriction ex-
ceeding those ensuing from these instruments can be imposed on
France without her consent. Thus, there is no doubt that the Court
is unable to restrain France from establishing at her political frontier
a police cordon for the control of traffic, and this moreover does not
appear to be disputed hy Switzerland. On the other hand, Switzer-
land disputes the right of France to coIlect duties and taxes at her
political frontier even though these charges are not duties and taxes
on the importation or exportation of goods but are duties and taxes
also leviedon the same articles produced or manufactured in France.
Switzerland, in fact, has in her draft decision (Art.3, para. 2)pro-
posed that importç from Switzerland to the free zones shall befree
of any duties and taxes whatever, a suggestion which has met with
lively opposition on the part of France.
In this connection, the Court observes tliat no such limitation
necessarily ensues from the old provisions relating to the free zones;
that in case of doubt a limitation of sovereignty must be constrated
restrictivelyand that while it is certain that France cannot rely
on her own legislation to limit the scope of the internationa1
obligations, zt is equally certain that French fiscal legislation
applies irzthe territory of the free zones as in any other part of
Frelzckter~itory."
264. The International Court itself took the same line in the
Asyluln Case (I.C.J. Reports 19 jo, pages 274-5) where the Colom-
bian Government sought to rely on a treaty provision concerning
extradition and the Court said:- "In thecase ofdiplomatic asylum, the refugeeiswithin the t:erritory
diplomatic asylum involvesenaevderogation from the sovereignty of
that State. It withdraws the offender from the jurisdiction of the
territorial State and i:onstitutes an intervention in matters whicli
are esclusively within the cornpetence of that State. Suc- a der01
gation from territorial .sovereigntycasbevecognized unless itstegai
b~sisis establishein cach Particular case." a -
265. Nor has the Court shown any disposition to apply a different
rule in cases concerning clairns to rights of transit across another
State's territory. On the contrary, the Permanent Court of Inter-
national Justice held in one case that a right of transit could
only result from a special agreement and in another case that,
being a limitation ,upon.territorial:sovere aitreatyy,right of
transit has to be interpreted resti-ictively in favour of the terri-
toriaI State.
266. In the Advis~ry Opinion on Railway .,Tra@c ,befween
Lithzrania and Poland (-cg31,Series AjB, No. 42, page 108) the
Permanent Court uras asked whether her international engagements
obliged Lithuania to take the necessary measures to open for
traffic a section of a railway in her territory. Poland \vas asserting
a right of railway transit over this part of Lithuania for the
purpose of linking the Polish railway system to the Estonian
railway system. Poland was theri in a position to invoke the
benefit of a conventional rule which is not now in force, riamely,
the provision in rlrticlt: 23 (c) of the Covenant of the League,
which rerids as follows:
conventions existing cirhereafter to be agreed upon, the Membersnnl
ofthe League:
(e) will make provision to secure and maintain freedom of com-
munications and of transit and etluitable freedom fothe commerce
of aU Membersof thc Leaguc."
The Court held that under this text specific obligations to
provide for freedom of communications and transit could only
arise from "international conventions existing or hereafter to be
agreed upon". It then added (page 113) :
"If this interpretation is correct it is impossibie to deduce from
the general rule contained in -4.rticle23 (e) of the Cove~lantan
obligation for Lithuania to open Landwarow-Kaisiadorys railway
sector for international traffic or for part of such traffic; such
obligationcould only result fromaspecial agreement."
9 The Court thus considered that Article 23 (e) of the Covenant
only had the effect of a general directive to Members of the
League to make provision for freedom of transit and did not
impose on them an obligation to grant a right of transit in each
and every case. For a State to be under an obligation to grant
transit in a particular case, the Court held that there must be
a specific agreement Iaying the particular obligation upon the
territorial Sovereign. Admittedly, in this Opinion the Court was
only concerned with the international contractual engagements
of Lithuania in regard to railway transit. The Opinion does,
however, strongly confirm that rights of transit over land are a
matter of particular agreement in each case.
267. The Permanent Court's judgment in the S.S.Wimbledon Case
(1923, Series A, No. r, page 15j , hich is the other case invoIving
a right of transit, is very much in point for the present case and,
in the submission of the Government of India, merits the most
careful consideration by the Court. In theS.S. Wimbledon Case the
question before the Court was whether a British merchant ship,
chartered to a French Company and carrying war material to
Poland, had a right of transit through the Kiel Canal at a time
when a state of war existed between Poland and Russia and
when Germany's neutrality laws prohibited the carriage of war
material to either belligerent across German territory. The Kiel
Canal, being a waterway artificially constructed by Germany
wholly within her own territory, is in principlc a purely internal
German traffic route, just as any road or path over Indian territory
is in principle a purely Indian internal traffic route. Prior to the
Treaty of Versailles no international right of transit existed
through the Canal. But by Article 380 of that Treaty it was
provided that the Canal and its approaches should be rnaintained
by Germany "free and open to the vessels of commerce and of
war of al1 nations at peace with Germany on terms of entire
equality." The general effect of Article 380 plainly is to create
an internationaI right of transit over this inland Canal for al1
vessels, whether of commerce or war, on condition only that
they belong to nations at peace with Germany. Councel for
Germany, however, contended that the right of transit amounted
to an international servitude which, being a limitation upon the
exercise of Germany's sovereignty, rnust be restrictively inter-
preted and, therefore, must be construed as not affecting Ger-
many's rights as a neutral. The Court held that, whether Ger-
many's obligation to allow free transit constituted an international
servitude or merely a contractual obligation, it represented an
im$ortant limitation O/ Germany's exercise of her soveïeign rights
over the Canal and that this by ifsel/ was n suficient reason /or
applying fhe principle of restrictive iîzterpretation. The relevant
passage from the Court's judgment reads as follows (at page 24) :- COUKTER-MEMORIAL OF INDIA (III 58) 115
"In order to dispute, in this case, the right of the S.S."Wimble-
don" to free passage through the Kiel Canal under the terms of
Article 380, the argument has bet:n urged upon the Court that this
right really amounts to a servitude by international law resting
upon Germany arid tliat,likeal1 restrictions or limitations upon
the exercise of sovereignty, this servitude must he construed as
restrictivelyas possible and confined within itsnnrrowest limits,
more especially in the sense that it should not be atiowed to affect
the rights consequent upon neutrality in an armed confiict. The
Court is not called upon to take a definite attitude with regard to
the question, which is moreove1 of a very controversial nature,
whether in the domain of international law, there really exist
servitudes analogous to the servitudes of private law.
Whether the German Goverilment is bound by virtue of a
servitude or by virtiie of a contractual obligation undertaken
toïvards the Powers entitled to benefit by the terrns of the Treaty
of Versailles, to allow free üccess to the Kiel Canal in time of war
as in time of peace to i;hevesselsof al1nations, the fact remains tlzat
Germany has to szibmit toan imfioj.tant limitation of the exercisethe
soverezgnrigkts which no o?zedisfiutes that she fiossesses overthe Kiel
Canal. This fact constitutea suflcient renson for the rest~ictitleigzter-
pretation, i?z case of doubt, of fhe clause which firoduces sztch a
limitation.But tlie Court feels ol~ligedto stop at the point where
the so-called restrictive interpretation would be contrary to the
plain terms of the articleand would deçtroy wliat has been clearly
granted."
268. The above passage leaves no possible room for doubt that
the Court considered the principle of restrictive interpretation in
favour of full sovereignty to ayply generally to limitations on the
exercise of sovereignty and not merely to a limitation amounting
to an "international servitude" or to a "disrnemberment of sover-
eignty". Thc passage also shows that the Court did not apply the
presumption in favour of fulI sover~:ignty in that case bccause, and
only because, it held that the terms of Article 380 of the Trt:aty of
Versailles were clear and categoriczil in imposing an obligation on
Germany to grant a riglit of transit to al1 vessels of nations at
peace with her.
269. The principle that a restriction on the exercise of territorial
sovereignty of the kind claimed by Portugal is not to be presumed
but has to be established by clear proof of the specific consent of
the territorial State to the particular restriction is also underlined
in the writings of many jurists. Tflere is, indeed, a large body of
learned opinion which holds that rights of transit, such as Portugal
claims, and other permanent restrictions on territorial sovereignty
in favour of another State must have their origin in a trcaty grant.
Extracts frorn some of the modern xvriters who express this vieiv-
Oppenheim-Lauterpacht, Sibert, Crusen, VaIi and Reid-were
given in paragraph 164 of India's Preliminary Objection ancl these
extracts occur in passages tvhere those writers wcre discussing
so-called international servitudes. The theory of internationalservitudes has, it is true, been the subject of some confusion and
controversy on the part of writers who have tried to reproduce too
literally the principles of Roman private law in the quite different
context o,f inter-State relations. Portugal, as the Court is aware,
has attempted, in her Observations and Submissions and in the
oraI argument on India's Fifth Preliminary Objection, to use
these.doctrina1 differences to shield herself from the impact of the
principIe that a permanent right to the restriction of another
State's territorial sovereignty such as'she claims against Tndia must
have its origin in a treaty grant. The principle does not, however,
rest on the adoption of any particular theory of international
servitudes and, as will now be shown, Portugal's whole argument
on this point goes very wide of the mark.
270. Portugal's argument, which appears in paragraphs 108 to
120 of her written Observations and Suhmissions, may be sum-
marised as follows: The theory of servitudes is controversial but
"widely-held opinion, supported by eminent authorities" takes as
a distinguishing feature of a servitude the attribution to the
beneficiary State of a "right of sovereignty, with consequently a
dismemberment of the territorial sovereignty". Portugal claims
only a "bare right of transit without immunity from India's terri-
torial sovereignty". This claim does not, she contends, involve the
attribution to her of any part of India's territorial sovercignty, is
not a "dismemberment of sovereignty" and is not to be classed
as a servitude. By this kind of reasoning Portugal tries to make out
that her claim is not within the yrincipIe xvhichraises a presumption
against a limitation upon territorial sovereignty. That Portugal's
description of the legal nature of her ciaim cannot be accepted as
correct will be demonstrated later. At present the Government
of India is only concerned to show that the principle on which
India relies does not have the iiarrow basis suggested by Portugal.
271. In her Observations and Submissions (paragraph 115) the
Portuguese Governrncnt claimed Sir Hersch Lauterpacht and
Professor Bastid as aiithorities for its proposition that "dismem-
berment of sovereignty is an essential characteristic of a servitude".
Thus, Sir Hersch Lauterpacht is quoted as having said in his lectures
at the Hague Academy in x937(RecueiEdesCours, 1937, IV, p.328) :
"What distinguishes servitudes from any other li~nitation of
territorial sovereignty is that they imply the grant of a right of
jurisdictionand a right of sovereignty. They imply a division of
sovereignty."
And Professor Bastid is quoted as saying in her University
lectures that situations described as servitudes involve a dissociation
of territorial junsdiction. The Government of India again empha-
sizes that the principle on which it relies concerns permanent
restrictions on the exercise of territorial sovereignty, regardless of whether tkese fa11within any particular définition of internatioiial
servitudes. But, if.'need be, it woilld also certain19 maintain that
.the rights of transit claimed by Portugal fa11within the meaning
given to "servitudes" by the majority of tvriters who employ this
'term. The question whetfier such rights are or are not to be classified
as servitudes is largely a question of terminology. The real point is
.what kinds of "limitation of sove1,eignty" or "division of sover-
eigntyH-do writers have in mind when they speak of "servitudes",
or of "restrictions on the cxercise of territorial sovereignty", which
are only to be established on the basis of an express rreaty grant?
272. As Portugal has cited a dicturn of Sir ers ch .Lauter-
pacht, it is of interest to look at the treatment of servitudes in
Oppenheim-Lauterpacht, International Law, Vol. 1, eighth edition,
'1955,pages 536-54 :1
, . "State servit~& Uri:those excr:ptio~zarlestrictio?zsmadeby dreaty
on the territouialsupremacy of a State by which a fiart or the whoie
of ilsterritoryisin a limited way made flerpetoallyto serve a certain
$zcr$oseorinterest O# fanothe?'tatz. Thus n Sdateflzdyby a co;rzvention
beobligedtoallow the $assage oftroopsoj a neighbouringState,or may
in the intercst of a neighbouring State be prevented fsom fortifying
a certain town near the frontier.
Servitudes must not be coi1fu:;edwith those general restrictions
upon territorial supreinacy whiclt, according to certain rules of the
Law of Nations, conccrn ail States alike, These restrictions are
named 'natural' restrictions of territorial supremacy (servzbtes
jltris geiztium naturak:~),in contradistinction to the conventional
restrictions (serz'itutesjuris gentium volzintariae)which constitute
State servitudes in the technical sensr of the terrn. Thus, for in-
stance, it is not a State servitiide but a 'natural' restriction on
territorial suprernacy that a State is obliged to admit the free
passage offoreign merchantmen through its territorial maritimebelt.
The mnjority of writers and the practice of States accept the
definition or extent,andiare often divided as to whether a p~irticular
restriction upon territorial suprernacy is O?is n0t.a State servitudf.
Some passages in the nward of tlhePermanent Court of Arkritratipn
in the case of the North Atlantic Fissheries(1910) createcl the. im-
pression that the Court rejected the conception' of servitudes.
In fact, the Court was prepared to accept it, but, for reasons.which
gave sise to some criticism, it demanded an express grant to that
effect. It is now being increasingly recognized that whatever may
be the terminological objections militating against the use of the
term 'serritude', neighbourly adjiistments inthe shape ofrestrictions
of sovereignty in the economic or even militaiy sphese often
constitute a better means of obviating international friction than
cessions of territory pure and simple. Purelj~ territorial changes
frequentlycreate as rriany difficultiesasthey remove.
"Since the object of State servitudes is the territory of a Çtate,
such restrictions upoii the territorial supremacy of a State as do
not make a part or the whole of its territory itself serve a purpose
or an interest of another State arenot State servitudes. The territory asthe object is the mark of distiriction between State servitudes and
other restrictions on the territorial supremacy. Thus the perpetuaI
restriction imposed upon a State by a treaty not to keep military,
naval or airforces, or not to keep an army, navy or air force beyond
a certainsize, is certainlya restriction on territorial supremacy,
but is not, as some writers maintain, a State servitude, because it
doesnot make the territory of one State serve an interest ofanother.
On the other hand, when a State submits to a perpetual right en-
fortify a certain town, region, place, or isIand, or totheyclaim of
anotfier State for its subjects to be allowed a rigoffishing within
the former's territorial belt, in al1these and similar cases the terri-
torial supremacy of a State zs in such a way restricted that a part
or the whole of its territory is made to serve an interest of another
State, and such restrictions are therefore State servitudes."
And then Oppenheim-Lauterpacht gives a nurnber of examples
of servitudes. Amongst the rnilitary servitudes it lists tlze righta
send froops across another State's territory. Amongst economic
servitudes it Iists the right to fish in foreign territorial waters, a
right of free navigation on a river, a right to construct a railway
or run a cable across another State's territory "and the like".
273. The Government of India does not propose to multiply
citations from the works of jurists on the subject of "servitudes"
or "rights analogous to servitudes". It repeats that it takes no
position in this case on the question whether international lsw
recognizes a distinct doctrine of servitudes, or whether rights of
transit cvithout immunity such as Portugal claims are or are not
properly to be termed "servitudes". The Government of India
only thinks it necessary to stress that in the workç of those writers
who discuss the question of international servitudes, rights of
transit and especially of military transit are arnongst the most
common of the rights given as examples of servitudes. The Govern-
ment of India like the Portuguese Government in its Mernorial is
content to leave aside the doctrine of international servitudes.
The position which it takes in this case is simply that rights invol-
ving permanent restrictions on the exercise of the territorial
sovereignty of another State of the kind claimed by Portugal can
only be established by proof of the express grant or specific consent
of the territorial State. This position in its subrnission is fully
established by the judicial decisions and the opinions of writers
which it has cited above and in paragraphs 161-168 of its
Preliminary Objection.
274. The Government of India does not overlook the fact that
in paragraphs 108 and ~og of her Observations and Submissions
Portugal sought to invoke the Wimbledon Case and the North
Atlantic Fisheries Arbifration in support of her contention that
a bare right of transit without immunity falls outside the above-
mentioned principle. The Portuguese attempt to make use ofthese cases is singularly unconviilcing, if only becauçe in both
cases the Court was in fact concerned with an express treaty
grant. At the Oral Hearings the Government of India did pass
some comments on the Portugue~e distortion of a passage from
the judgment in the TlTimbledon Case and a closer examination ofthe
two cases shows that they are completely and utterly opposed
to the Portuguese contention.
275. The judgnlent in the Wimbledon Case, it is said, brings out
that there is an essential difference between a limitation of the
exercise of sovereign rights and an abandonment of sovereignty.
The reference is to the well-known dictum (Series A, No. I,
page 25) :-
"The Court declines to see in the conclusion of any Treaty by
which a State undertakes to perform or refrain from perforrning
a particular act an abatidonment ofits sovereignty. No doubt any
convention creating an obligation of thiskind places a restriction
upon the exercise ofthe sovereign rights ofthe State in the sense
that it requires them t.obe exercised in a certain way. the right
of entering into interriational engagements is an attrihuof State
sovereignty."
Every dictum bas, ho~verrer,to be read in the context iri which
it was made and the Permanent Court was discusçing "aban-
donment of sovereignty" frorn an entirely different point of view
from that of the Portuguese Government.
276. In that case, it had been represented on behalf of Germany
that there are some imprescriptible rights of sovereignty in regard
to which a State cannot be Eegallybound even by an exfiresszt~zder-
takzhg in a treaty, and that amongst these are its rights in regard
to neutrality in time of war. That was the context in which the
Court "declined to see in the conclusion of any Treaty by which
a State undertakes to perform or refrain from performing a par-
ticular act an abandonment of its sovereignty". In saying those
words, the Court was concerned only to reject completely the
thesis that some forms of treaty undertaking are not binding in
law at al1 because they must be considered to constitute an
abandonment of sovereignty. The context makes it cIear that the
phrase "abandonment of sovereignty" was used by the Court in
the sençe of "abandonment of its :;tatus as an independent State".
No doubt, in that particular context the Court dicl make a sharp
distinction between restrictions upon the exercise of sovereign
rights and abandonment of soveri:ignty. But that has no bearing
on the quite different question hefore the Court in the present
case, namely, the question whether rights involving res1.rictions
uyon the exerciçe of another State's territorial sovereignty are
only to be derived frorn its express gant or specific consent.
277, In point of fact., when closely examined, the dictum in
the Wimbledon Case which is relied on by Portugal goes dead against her own.argument. The conclusion which she is asking the Court
to draw from the case is that an obligation to alIow transit
"without immunity" iç a mere restriction upon the exercise of
soyereigqty vitally different from an obligation.,to, allow transij
!lurith ifii+iünit~~, xvhich shè'implies must be classed as arï."aban-
donment of sovereignty". But what was the right of transit 'in
the Wimbledon Case which the Court declined to consider "an
abandonment of sovereignty"? It was a right of ~ti-ansit ."with
immunity". For Articles 382-384 of the Treaty of Versailles
provide that (1) no charges may be levied on vesseIs using the
Canal or its approaches other than "such as are intended to
cover in an equitable manner the cost of maintaining in-a-navigable
condition, or of improving, the Canal or its approaches,. or to
meet expenses incurred in the interests of navigation", and (2)
goods in transit may be placed under seal or in the custodj7 of
customs agents. In other words the Treaty provided for transit
across German territory with complete immunity from cuçtoms
duties and any other kind of fiscal tax or charge. Thus, far
from making the vital distinction suggested by Portugal between
transit with and without immunity, the Court saxv no "aban-
donment of sovereignty" in the acceptance of a treaty obIigation
allowing transit with immunity. In fact, Portugal's citation from
. the Wimbledon Case really knocks the bottom out of her own
argument.
278. As to the North Atlantic Fisheries Arbitration, it is
instructive to compare ivhat was said by Counsel on both sides
with what Portugal now says about lier right of transit \vithout
immunity not constituting a dismemberment of sovereignty. In
that case there \vas an express treaty grant by Great Britain
to the Cnited States of fishing rights in Canadian waters for
United States citizens. The United States contended that this
right was a servitude and, as such, carried also the right for the
United States to participate in the regulation of the fisheries in
Canadian waters. This contention led to long discussiori not only
of international servitudes but also of the effect of the gant of
the fishery upon Great Britain's territorial sovereignty over the
waters. In the course of the argument of Sir William Robson,
the British Attorney-Generai, a member of the Tribunal (Judge
Gray) observed that the grant would not be a transfer of sovereignty
unless the right to fish was to be regarded as a sovereign right.
The following exchanges then occurred between the Attorney-
General and the Judge (Proceedings, Volume II, page 1686):-
"Sir W. Robson :Of coursethe right tofishisnot a sovereignright.
The right of exclusionis asovereignright, and that right islimited,
in fact qlsoadparticular persons it is abandoned; 1 limit my sov-
ereignty to the extent of saying 1 will not exclude you. That is a
limitation, but of course that is not inconsistent with the full
exerciseofthe local jurisdiction when the favourealien hascorne in, jwdge Grny :Then itbecomes, in that view ofit,confining:your-
self to what pou have just saia,question of the evtent of the limit-
ation upon sovereign power7 .
Sir W. Robson: Yes. Of course every contrrict isa liniitation,
as 1 have so frequently said. Ian1 riot standing here to sap that
Great Britain has not subjecte<lherself toany restriction or limi-
tation, Of course sheias.".
Later on in the beariiigs, Senator Elihu Root, replying for the
United States, said (Ibid.,page 2015):-
"Xow, a further proposition upon which we are al1agreed is that
this grantdid limit British sovereignty. That1sagreed by counsel
on both sides, and 1 suppose 1need not spend any time over it.
Originally, Great Britain Iiad the right tu reserve to hown çub-
jects the exclusive use of tliat portion of the earth's surface which
we cal1 the treaty coast for fishing purposes. She had the right to
exclude al1other perçons from it. She had the right to dispose.freely
as sovereign of the opportuniy for the entire use among. her own
subjects,to conditionits exerciseand to say that tkey!hall do so
and SC,that these may go there, and that those may not. She had
the right to admit such aliensas she saw fitto the beneficial use.
She had the right to çay to the peopleofMasçachu~etts: E'oumay
cornehere and fish,and to tlie peoplofMaineand New Ha'rnpshire:
You may not, orthat the people of New York niay go and fis11and
the people of Massachusetts may not.But wlienshemade thégrant
sheparted to a material evtent with the power to do those acts of
sovereignty."
Senator Root went on to.argue that where there is a grant.of
sovereign rights, the transferred sovereignty 'of the grantee has,
as it were, precedence over the sovereignty of the grantor and
that a reservation of sovereignty iri favour ofthe original so~~ereign
cannot therefore be implied in thi: grant. On this rather invnlved
argument the President of the Tri.buna1, Dr. Lammasch, obserired
(Ibid., page 2016) :-
"If it canbe saidon one side thnt therecan be no impiied reser-
'vation of sovereignty, can it nbe saidon the other side that there
can be no iniplied abdication of sovereignty? The conçequence
would be that one must stick to the words of the trenty, and
consider that it confers orily tharightwhich is expressetlby the
i$sissim isrbi sfthe treaty."
And in the end, "stick to the words of the treaty" is exactIy
what the Tribunal did on this qiiestion; it declined to rt:ad into
the grant of fishing rights an additional restriction upon Great
Britain's sovereignty 'riot expressed in the i.psissim verbn of
the treaty.
ConcEusion so be dfawlz /rom th: Cases and Opiîzio nfsJurists
discassed above:
279. From the cases and opinions of jurists discussed above
two clear rules of general international law emerge which are,122 COUNTER-JTER.IORIAL OF INDIA (III58)
the Government of India submits, of fundamental importance
for the decision of the present case. These rules are:-
(1) There is a strong presumption of law in favour of a State's
full power to exercise the normal rights of sovereignty
within its own territory and against the existence of
limitations upon that power.
(2) This presumption in favour of the territorial State is
only to be displaced in any given case by clear and
unambiguous proof of its specific consent to the particular
limitation to which its potver to exercise its sovereignty
is alleged to be subject.
280. The cases and opinions of jurists discussed above also
entirely confirm and establish the proposition advanced in Part III,
that a right of transit over another State's territory constitutes
a limitation upon-a derogation from-the exercise of that State's
territorial sovereignty. Rloreover, they establish that this is so
regardless of whether the right of transit is with or without
immunity from the local law, and regardless of whether it should
or should not be properly termed "an international servitude"
or "a dismemberment of sovereignty".
281. Accordingly, the Government of India submitç that a
heavy burden of proof lies upon Portugal to establish by clear
and unambiguous evidence the specific consent of the sovereigns
of the territory lying between Daman and the enclaves to the
rights of transit claimed by Portugal in this case. COUNTER-MEMORIAL OF INDIA (III58) 123
PAR'C V
THE ABSENCE OF ANY RESTRICTIONS ONSOVEREIGNTY
IN GENERAL LAW WITH REGARD TO
RIGHTS OF PASSAGE BY ROAD
282. When Counsel for the Government of India came to prepare
this part of the Counter-hlemorial a preliminary question arose.
In what order were they to exarnine the daims invoked by the
Portuguese Gotrernment 7 At first sight they felt inclined-ionly
to suit the Court's convenience-to adopt the order followed in the
Portuguese Memonal, to which it ivas their duty to reply, and
examine one after the other the treaties, custorn and general
principles of law. This, however, meant that Our examination
would bear first upon the alleged cpecial claims of Portugal, special
treaties and their application (or what Portugal will subsequently
be calling local custom). It seemed, on the contrary, desirable that
the express or implied expressions of the intention of the Parties or
of their predecessors shcluld be set within the framework of general
law in the matter.
Professor Bourquin is therefore to be comrnended for having, in
his oral statement to the Court on the afternoon of 3rd October,
1957 (Oral Proceedings,IV, p. 180)expressed his preference for first
examining the claims arising out of general international law. On
the other hand, we see rio valid reason for inverting, as he did, the
order followed in Article38 of the Court's statute and for putting
custom after the general principles of Iaw or what it may be decided
to regard as such.
283. Search for the gcmeral rules of law whichmay apply to the
question of the alleged right of passage claimeby Portugal seems
likely to be made easier if we first plonerecord that this right of
passage between parts of the territory of a State and certain other
parts included inthe territory of another State is a right of inter-
national transit(we shalI see that, in fact, and in the circurnstances
of the case, it leads inevitably great deal further). Such, more-
over, is the charact er which the Portuguese Government accords
to this right in paragrap117 of its Observations: the right claimed
is "siw$lement .undroit de transi sz~rIe f.erritoz..."and which
is defined as the right "d'e8ectzlun trajet dont le point de départ
et le point d'arrivéese trouvent situésen dehors du terriioirtra-
versé". Neecl it be added that this right of transit necessarily
implies the entry into theterritory of the persons and goods that
benefit by it, and that the statement to the contrary contained in
the above-mentioned paragraph of the Portuguese Observations is
hard to understand? Be that as it may, although the existence of
enclaves is an exceptional situaticin, international trafrom one COUNTER-RIEMORIAL OF ISDIA (III38)
124
territory through another territory to the territory of a third State
is a cornmon phenornenon, so that it appears legitimate, if not
essential, also and before al1 else to investigate the rules and prin-
ciples governing transit.
284. Now there are no treaties, nor is there any unwritten rule of
international law, either customary or deriving from general
principles of law, which imposes upon States theduty of permitting
the transit by land routes of persons and property coining from
and proceeding to other States.
IVe think it unnecessary to revert to the observations already
exchanged regarding the right of passage by air or sea. Ive would
only mention that, as regards Iand territory, the single case of a
right of passage cited by Professor Bourquin in reply to the argu-
ments of Professor Guggenheim is that of diplomatic agents ~vho
have to pass through the territory of another State in order to
rejoin their posts (OraI Proceedings, IV, p. 178). The Court will
remember that thisstatementby Professor Bourquin was refuted on
the strength of an opinion of Sir CecilHurst (Oral Proceedings, IV,
p. 223), but the Court will no doubt think it unnecessary to dwell
upon this particular question, since it obviously does not alter the
fact that there are no general rules granting States a right to transit
by'land and it is a question, moreover, luhich finds its answer in a
sençe differing from. that argued by Professor .".rqu.n. .. - 1 .
285. The non-existence of a general rule for transit is the more
remarkable because such a rule had been recognized as desirable as
long ago as 1919 when the Covenant of the League of Natio~is, in
Article 23, enjoined upon member States to take the necessary
measures to secure the safeguarding and maintenance of the freedom
of communications and transit. As already rnentioned in paragraph
167 of the Preliminary Objection of the Government of India, the
Permanent Court in its Advisory Opinion on RaiEway Trafic
between Lithuania and Poland held that Article 23 of the Covenant
was not enough to create an obligation upon Poland to grant the
right of transit to Lithuania. Moreover, Article 23 of the Covenant
was not reproduced in the Charter.
It is true that an attempt was made at Barcelona in 1921 to
give substance to this pnnciple, at any rate so far as it concerned
waterways and railways. But the mere fact that this Clonference
was called emphasizes..the gap in international law in this field.
Professor Bourqiiin mentioned it in his lectures to the Acadcrny of
'International Law in 1924 (Recueil des Cours, IV, p. 192) in the
following terms :-
"Depuis plus d'un siècle, on admet que la mer territoriale se
trouve grevée d'une servitude de passage, c'est-à-direde transit,
au profit de tous les pavillons. Depuis plus d'un siècle,on admet égalernentque le riverain d'amont d'un fleuveinternational possède
un droit de transità travers Ies sections inférieurede la voie d'eau.
: tionelle, n'étendait audelàègde ces limites relativement restreintes
leprincipe de la libertédu transit. La corlvention de Barcelona se
propose de combler, partiellemerlt tout au moiris, cette lacune."
As regards the limitation of the Convention to transit by water-
ways and railways we find in the sa.mestudy the following explana-
tion :-
"Si l'acte de Barcelona a limité l'objet de ses prescriptions aux
transports ferroviaires et aux transports fluviaux, s'il s'est abstenu
d'y soumettre les transports par routes et les transports aériens
ce n'est point dans des raisons de principe qu'il.faut en rechercher
la cauie, mais dans des raisons d'opportunité.La question di1transit
international par routes - c'est-à-dire, en fait, par automobile-
souléve, au point de vue douanit:r notamment, des difficultés assez
complexes, et comme les transports internationaux par automobiles
ne sont pas encore tres developpés,la Conférence ,de Barcelone a
estimé que la solution du problème pouvait être différéesans
inconvénient".
Finally, it should be recalled that, as already mentioned (see
paragraph 160 above), men as regards transit by waterway and
railway, the British and Portugu.ese DeIegations present at the
Barcelona Conference expressly agr-eedthat the rules to be adopted.
would not extend to enclaves owiiig to the peculiar cornp1t:xity of
this problern. In any case, there can be no doubt at al1that rules
of custom concerning transit by road, do riot exist.
286. IVhat are we to (:onciude fr-omthis? We can only conclude
that in the absence of special agreements or unwritten rules concern-
ing particular cases, transit, and notably the granting or refusal'
of transit across the territory of a State, arc matters coming within ,
the exclusive sovereignty, i.e., the discretionary jurisdiction, of
that State.
287. The Portuguese Governmi.nt has, it is true, attempted
to reject this conclusiori by having recourse in its Observations
(paragraphs 108-110) to certain subtle distinctions betwcen limita-
fions to tite erercise of the right of sovereignty and the abaîzdoanteîzt
or dismenzberment of sovereignty. As the only Iiinitations in the
Application submitted to the Court would be limitations of Indian
sovereignty over the territory separating the enclaves from tlie
Portuguese port of Daman, there would in the view of the Portu-
guese Government be no contradiction between the subject-matter
of this case and the principle of exclusive territorial jurisdiction
laid down in the arbitral award by Judge Wuber (Island O/Palmas
Case) and in the decisiori given by Chief Justice Narshall (S'chooner
Exchange Case).
.Expounding the sarne idea, Professor Bourquiri said at the
. morning hearing of 3rd October, x557 (Oral Proceedings, IV, p. 174)that the exercise of a StateJs right as territorial sovereign to enact
Iaws and regulations applicable to foreigners in its territory is
subject to a srnaller or larger extent to international obligations
which may result from treaties concluded with foreign States, but
which may also follow from rules of custom and general principles
of law.
288. However interesting the proposed distinction and the
co~nments on it may be, nothing in it affects the arguments of the
Indian Government that transit through a State cornes under the
territorial sovereignty of that State, that, without a doubt, that
territorial sovereignty may be waived, restricted or limited or
regulated in its exerciseby rules or obligations arising out of general
or special agreements based on custom or general principles of law,
but that it is nowhere asserted that as regards transit sny such
limitations, restrictions and'regulations exisin general international
law. In the absence, therefore, of proof of the existence of special
titles (special agreements or usage), territorial sovereignty is an
obstacle to the granting of a claim to transit by a Court which
pronounces on the basis of law.
289. Which being said, there is no doubt that, although every
State is in pnnciple free to refuse the transit of foreign persons or
goods by land or to allow it only within certain limits, there do in
fact exist a very large number of treaties in which this right is
waived. Even in the absence of such undertaking, most States, as
a rule, authorizetransit in time of peace subjectto a fewrestrictions.
It should also be repeated that international jurisprudence has not
seen in this practice anything which shows the existence of a rule
of custom, in the manifest absence of an o$inio ??,tr ise,essential
character of which is recognized in Article 38 (b) of the Court's
Statute.
290. Such being the state of international law regarding transit
in generaI, are there any rules which recognize the right of passage
when the starting point and destination are situated in the territory
of the same State, especially when one of the two points is part
of an enclave ?
The Portuguese Government has tried to show that such rules
exist. There is, of course,no mention in its Memorial of any general
treaty appIicable in the matter. But paragraph gr of its Mernorial
alleges-and the point is repeated in paragraph 149 and 151 of the
Observations-that the existence of a generaI custom can be deduced
from the practice existing in "a very large number of enclaves".
This claim strikes us at once as peciiliar, for when it is considered
that the enclaves cited number six iri al1 (excluding the case now
in issue) and concern nine countries, it is difficult to suppose that
any "general" practice can follow which rnay serve as a basis for
a custom. 291. It is true that the Portugur:se Government has annexed to
its Observations a study by Proi'essor Bauer on the system of
enclaves and the right of passage subsequent to the Treaties of
Westphalia. A strange study this, iiiwhich the author has collected
al1 the clauses in treaties establishing rights of passage in favour
of certain states against other states-Munster, the Pyrenees, Aix
la Chapelle, Nymegen, Ryswyck, Riiestad, the Paris Treaty cif1814,
and the Final Act of Vieiina of 1815, the 1919 Treaty of Versailles,
and Germano-Polish agreements concerning freedom of transit
signed in Paris and Breslau. Not a single case is quoted. in which
the writer h3s been able to discover the existence of a right of transit
in the absence of an agreement. How then can we infer the existence
of a custom, especially when the provisions referred to are essen-
tially different, some being limited to the movement ofarmeil forces
(e.g. Munster, 1, p. 764 of the Annexes to the Portuguese Observa-
tions), othersexcludingarmed forces (e.g. Breslau,1,p. 791) or pro-
viding for the transport of unarmed troops only, which have to
travel separately (e.g.Paris, 1,p. 7ES), while the more recent agree-
ments cover only transport by rail?
292. It is noticeable, moreover, that Professor Bauer cites
indiscriminately, as casf:s of enclaves, treaty texts referring to
relations between a State and one of its enclaves çeparated from
it by the territory of ailother State, these relations-very much
alike moreover-establishing a right of communication between two
States (USSR and Norway) across the territory of a thirtl State
(Finland) (1,p. 795) or even relations granting to continental States
access to the sea (1, p. 763), such as the Treaty of Belgrade which
favours communication bi:tween Yugoslavia and Salonica (1,p. 794),
but these are quite obvioiisly simple cases of transit where everyone
agrees that there is no general rule of international law. If the fact
of special agreements concluded in regard to transit-anri their
number is legion-is not enough to deduce from it the existence
of a custorn, why should it be otherwise in the case of enclaves
proper ?
293, A careful study of the material produced to support the
cases of enclaves proper cited in the Mernorial and repeated in the
Observations only confirms this negative conclusion.
When we consider these cases and the rules governing the right
of passage through the enclaves to other parts of the national
territory, no general conclusion can be drawn which would confirm
the e"istence of a general custom, as defined in Article 38, ~(bj,
ive., international custorn, as evidence of a general prüctice accepted
as law", and such as emerges from the Court's jurisprudence (P.C.I. J.
Series A, No. IO, p. 28; I.C.J., Colombo-Peruvian Case, Reports
1950, pp. 276 etc.) No proof has been furnished of the existence
of any gelzeradcustom froin cvhichc;in be derived a right of passage
from one enclave to anoi.her part of the national territory, parti-cularly in view of the fact that the right of passage is always
governed.either by an agreement or, in some cases, by local usage
which may be assimilated to an agreement because it is based upon
more or less tacit consent. A quick look at the more important
enclaves will support this conclusion. ..,
(a) Let us take the case of Llivia, a small Spanish enclave in the
French Pyrenees. Article 42 of the Pyrenees Treaty between France
and Spain dated 7th November, 1659, and the Treaty of Llivia
dated 12th November, 1660, regulated the right of passage by
agreement. The Treaty of Llivia provided that goods should
circulate freely exempt from al1duties between Llivia and Puycerda
(in Spain) and across the enclave, and that the çame right of passage
should be granted to perçons of French or Spanish nationality..
A treaty of 26th May, 1866, reorganizing the frontiers between
France and Spain, confirms the right of passage granted in 1660
and specifies.the route to be followed for the purpose (Article 21).
Article 23 confirms the right of civilians to use the footpaths in
this mountainous district; the police and the army are expressIy
excluded from enjoyment of that faciiity. Once again, then, the
regulations are al1embodied in agreements.
(6) The Italian enclave of Campione, a small area eiitirely sur-
rounded by Swiss territory, forms part, however, of Swiss customs
and monetary territory and is govcrned by the agreement of 5th Octo-
ber, 1861, between Switzerland and Italy concerning delimitation
of the frontier between Lombardy and the Canton of Ticino for
the purpose.of certain matters in clispute. The right of passage in
peacetime is regulated by the Convention on Navigation 'on Lake'
Maggioreand the Lake of Lugano concluded on zznd October, 1923,'
which came into force on 5th November, 1927 (see especially Arti-
cle 2).Switzerland haç never authorised the passage of Italian troops
across Swiss territory l.
(c) IfTith regard to the German enclave of Busingen, in the,
Canton of Schaffhausen. its relations with Switzerland are also
governed by treaty. The chief text is the agreement between Swit-.
zerland and the German Empire concerning the Baden Commune
of Busingen, dated z~st September, 1895 %, Article I of wliich
provides for certain customs facilities and Article 2 of which'
regulates the transport of criminals over Swiss territory; there is'
also the exchange of notes 13thl1qth November, 1928, concerning
the movement of military personnel and members of the police over:
certain railway lines and certain frontier roads between Baden and
Switzerland As no railway line passes through Busingen,the. onlyi
provisions which apply are Chapters 3 to 7 which authorize the'
. i
l See &:ecker, Dis Rschtsoerhalt,ziaie der Schneieire~~ren,uri~h'..~dèks'
1931. 23. C .
Syste;?iaCollection oI,ams and Decrees of the Confederatio6831etc.
Systenaatic Gollecfio~t,13, 287. passage over foreign territory of military and police personnel when
they are few in number l.For the rest, Busingen enclave is regarded
as part of the frontier zone and subject to the special regulations
laid down for that zone 2, in particulas, the persons concerned must
be in possession of identity papers (frontier card) which are required
in order that they may benefit from the facilities granted to this
traffic. There are no special facilities forhe traffic of goods between
Busingen and Germany ;Busingen is excluded frorn Germancustoms
territory, butis theoretica.1lyincorporated in Swisscustoms territory ;
in practice customs control between Switzerland and Busingen has
been suspended. Accordingly we find that, in regard to Busingen,
al1questions relating to its special situation are governed by agree-
ments; local usage does not enter into the matter even asasecondary
consideration.
(d) In regard to the Dutch-Belgian enclaves of Bar-le-Nassau
and Bar-le-Duc, their &tus is governed by an agreement between
Belgium and the Netherlands dated 1842, and especially by its
Article 14.Freedom of access to tht: two enclaves, of which Belgian
Bar-le-Duc is surrounded by Dutch territory, while Bar-le-Nassau
(Dutch) is situated within a Belgian enclave, is thus guaranteed
by an international convention supplemented by local usage.
Sovereignty over certain portions of land is disputed and h;is been
brought as a case before the International Court of Justice (see
Reports 1957, p. 194 etc.).During the First FVorld War, the Nether-
lands successfully asserted their rights and duties as neutrals
to forbid the passage through the enclave of German troops occu-
pying Belgium.
294. To sum up, the facts and documents mentioned by the
Portuguese Government, far from leading to the ackowledgment
of the existence of a general custorn recognizing the right of passage
between the main territory of a State and its enclaves, lead to the
conclusion that the soIutions found for the probleni by the States
concerned were, as a rule, incorporated in special agreements and
Vary according to circumstances, which excludes al1 possibility
of deducing from them any genera.1rule of custom.
Perceiving this, the Portuguese Memorial seeks to buttress its
short paragrnph attempting to demonstrate the existence of a
general custom (paragraph 51) by alleging general principles of
law, the statement of \vl~ichoccupied the whole of the last part of
the Memorial (paragraph 52-57), and to which first place was
granted in the finai recapitulation of the claims upon which the
Portuguese Application \vas supported.
The Portuguese Observations were not content with recognizing
this order of priority; they complied with it in the setting out of
forwhichnpassage is authorizedoes not extend tothesuppressionnof disorder.e
Wermari SwissConvention of Mlarch<r,1939,on frontiertraffic(Systenzalic
ColleclioofLaws aad Decvees, 13, 287).
IOtheir statement, dealing with general principles before setting forth
the facts which they allege indicate a general custom.
295.Before replying to the concrete principles invoked by Portu-
gal, the Government of India thinks that it should once again
protest against the obvious absurdity committed by the Memorial
when it claims to place the principles of public international law
within this third source defined in the Court's Statute as
"the general principles oflaw recognized by civilised nations"
To the authorities already cited in paragraph 19 ofthe Preliminary
Objections and in the oralhearings (OralProceedings, IV, p. 94et seq.
and p. 221 et seq.)one very important one has to be aclded. Com-
menting on the words"general principIes of laur", Professor Bourquin
in his course of lectures delivered at The Hague in 1931remarked
as follows (Reczteildes Cours, vol. g j, p. 73-74):
"les institutions juridiques dontle caractère universel est attesté
par la conformitédesLégislaliol nsternes.Celles-cin'ont pas compé-
tente assurément pour faire naître des normes internationales. Au
regard du droit des gens, ellesne sont pas des sources créat~ices.
Mais leurcofncidence est tenue pour le signerévélateurd'une norme
et constitue ainsi une source du droit des gens, si par source on
entend simplement un moyen de constatution."
296. The point could not be better made. FVhen it requests the
Court to substitute, as a soltrce of lahv to be applied by the Court,
for the general principles of municipal law so defined, the principles
of public international law as suggested in the hlemorial, or to
add them thereto, as proposed in its Observations, the Portuguese
Government not only ignores the spirit of the Court's Statute, but
endangers the positive character of international law by which
disputes have to be settled if legal security is not to be imperilled.
For the "sources" are by definition manifestations and expressions
of the law to be upheld by the Court, in the guise of treaties,
customs or concordant municipal laws. But if we grant that this
law comprises "principles" along with rules, where can we discover
the existence of those principles except in treaties, customs and
rules common to municipal laws? The Memorial itself recognizes
in paragraph 123 that the rules of custom and treaty to which
Portugal can also appeal are, in fact, only concrete manifestations
of a general principle which they supplement by certain definitions.
In other words, it is admitted that the general principles of public
international law have no other content than that which arises out
of rules of custom and treaty. It is impossible then to overlook the
grave imprudence of building up these off-shoots of custom into
independent, subjective and therefore, variable factors and of
allowing them then to encroach upon the facts of international
practice frorn which they originate and of modifying the Iegal
import of those facts. 297. Does that mean thatthe Government of India disputes the
existence of general principles of public international law such as
M. Bourquin mentioned in his speech on the afternoon of
3rd October, 1951 (Oral Proceedings, IV, p. 182), and of the:rights
and duties of States to which the I'ortuguese Mernorial refers in its
paragraph 52? By no means. The Government of India does not
dream of disputing that these notions play an important part in
doctrine and in international life or that they express essential
tendencies of the law, fundamental feelings and ideas which deter-
mine its growth. But quite obviousl y,they are only part of positive
law to the extent that their application is attested hy consultation
with one or other of the sources in Article 38. Thus, the principle
of State sovereignty mentioned by M. Bourquin is a rule of custorn;
so is the obligation upon the State, recalled by the Court in the
Corfu case,
"not to allowits territorto be used forthepurpose of actscontrary
to the rigl~ts other States"
whereas the principle of effectiverress, also invoked by Professor
Bourquin, is only an indispensable element which ensures that
every rule of international Iaw shall be applied with due regard
for political and legal realities. In none of these cases is there a
general principle of law as provided for in Article 38 of the Statute
nor an autoiiomous outcome of doctrine to which the Statute
rightly assigris a role ai; an auxiliary source among the sources
mentioned in Article 38 of the Statute, either by assimilating them
to general principles of 1aw or otherwise. By such a procedure,
Portugal ascribes to these principles a value they do not possess and
claims to deduce from them legal rules as being their corollary,
. arguing on grounds of pure logicwithout the least regard forfacts.
298. That, nevertheless, is clearly the reasoning adopted by the
Portuguese Governrnent in paragraphs 52 et seg. of the Mernorial
and repeated in paragrapl~s r 23 etseq. of the Observations. It begins
by proclaimjng the right of every State to existence, which ~iobody
dreams of clenying, and the RlerrloriaI adds in paragraph 56 a
corollary which is not re~ieated in the Observations, and is jnfact,
superfluous, that "the exercise of suvëreignty is limited by respect
for the rightsof others"; ;ind from those premises it draws the quite
gratuitous inference that right to existence includes the right to
everything required by the existence of such a State, such as
freedom of its communications between its principal territory and
its enclaves.
This obvioiisly begs the question. History is full of claims by
governments of States wf-iichseek the satisfaction of vit& interests;
right of access to the sea, right toi.+w rnaterials, right to markets,
right of immigration, right to living space, and, before 1940, right
to colonies, and similar political claims. Very often, partial sritisfac-
tion has been given to neighbouring States along lines compatiblewith the country's own interests. These claims are the origin of
numerous agreements which accepted them within well-defined
limits. But when has it ever been suggested that they could use-
fully be advanced before an arbitra1 or judicial body to be judged
on the basis of law?
299. There remains the hesitating and intermittent endeavour by
the Portuguese Government to have recourse to the general prin-
ciples of law proper.
Brief mention of this is made in one line of the Application,
under paragraph 21 (c) where the principle of the right of passage
is said to be
"déduit des législations internes, qui donne un droit d'accès au
titulaired'une propriétéenclavée".
Not a word is said about this in the Rlemorial. Moreover, it had
appeared to the Government of India that paragraph 42 had no
other purpose than to sever al1 connection between its claims and
the so-called theory of an international servitude "more or less
analogous to those of private law".
In the Observations, however, this argument is repeated, though
briefly (paragraph 134)~ and supported by a consultation with
Dr. Max Rheinstein, who analyses the laws of 62 States and finds
in them the existence of the compulsory right of passage in favour
of any holder of an enclaved property as against al1or some of the
neighbouring lands.
We must therefore reply to this argument.
- -
300. Sir Frank Soskice has already given in his speech of 27th
Septemkr, 1957 (Oral Proceedings, IV, p. 86 etseq.)the reasons why
a servitude of private law cannot be transfemed tothe international
plane. There is no real analogy between an individual's ownership
of private property and the sovereignty of a State over its territory,
this latter being regarded inOurdays as the space within which the
orpans of the state are authorized bv international law to exercise
th& jurisdiction within the limits aLd according to the rules which
the law imposes upon thern (cf, W. Burckhardt, Die Organisation
der Rechtsgemeinschajt, 369; Schoenborn, "La nature jtwidiqzte du
territoire", Academy of International Law, Recueil des Cours, 1929,
V, 91 etc.).
Nor can any legal effects be drawn from such an assimilation; in
particular it would be incautious to decide that an obligation upon
a Stateto suffer or to refrain from something under an international
convention or in virtue of usage which could be assimilated to a
tacit agreement should subject the territory to its authority and
automatically be binding upon successor States.
Summing up, rules inspired by private law can only usefully be
applied to promised acts of abstention or toleration when the
establishment of the servitude has heen expressly mentioned in an
international agreement. No doubt it was this last consideration which led Sir Hersch
Lauterpacht and others to confine the use of the notion of servitude
in international law to restrictions of sovereignty resulting from a
treaty (servitudes +ris gefitium volztntariae),excluding "natural" re-
strictionsof territorialsov~~reignty(servitudesjztrisgentium naturales).
301.Limited in this way, the notion of servitude altogether
ceases to be the subject of a general principle of law, but can onIy
serve to interpret international agreements in which there is a
reference to it, which reference must be regarded as expressing the
common agreement of the Parties to have recourse to private law
in order to determine the nature and effects of.the advantage
granted by one of the parties tothe other.
Professor Rourquin, however, at the end of his rejoinder (Oral
Proceedings, IV, pp, 266 to 268) attempted to give an ingenious
explanation of the two successive changes of front which Counsel
for India had noted in the attitude of their opponents in the rnatter
of servitudes. The Porti~griese Governrnent in its Memorial had
solemnly repudiated all appeal to this notion; but, in doing so, it
said, it rejected only the technical lise of the notion of international
servitude, while retaining recourse to a general pririciple which in
the various laws of countries is described as a servitude.
Such a declaration is said to be in no contradiction with the
opinion expressed by Sir Hersch Lauterpacht, who upholds on this
point the doctrine accepted by his predecessor, Professor Oppenheim.
These lawyers had confined the use of the term "servitude" to
cases in which express 01%tacit reference to it was contained in an
international agreement. They never intended to exclude the
general transfer to the plane of ini.ernationa1 law, apart from any
international agreement, of rules known to private law aç "servi-
tudes" and to which the name of "servitude" should not be pre-
served in international law.
In a word, we are told, this is mereIy a question of terminology,
the Portuguese Government having intended to adopt the termino-
logy accepted by the above-mentioned British lawyers \vithout
there being any reason to deduce from it the legal consetluences
which Counsel for India had deduced.
302.However clever this explanation, it does not seem to us to
be compatible either with the terrns of the Memorial or with the
works we cited in our Preliminary Objection, for, when it rejected
the theory of servitudes, the Memorial was careful to describe it
"as more or less analogous to those of private lad'. But in every
country which is familiar with the notion of servitudes-and they
constitute the majority cifthe States whose laws were analysed by
Dr. Rheinstein-the compulsory right of passage is regarded before
al1others as a servitude "established by law". It is therefore not
plausible to suppose that, at the moment when the Portuguese
Government denied al1 intention of taking its stand upon thenotion of international servitude and rejecting al1analogy between
the right of passage claimed and the sirnilar right known to muni-
cipal law as a servitude, it intended to retain that analogy as the
foundation of the right it was claiming, but under another name.
303. The same applies to the thesis put forward by Sir Hersch
Lauterpacht in his treatise. When he limits the notion of interna-
tional servitude to certain restrictions of sovereigntyresulting from
agreements, excluding restrictions arising from the general rule of
law, no matter what the analogies may be in private law, we cannot
view this as a terminological whim which would accept the analogy
as justifying the incIusion of the rule of private law in international
law at the same time that it rejects the term servitude common
in private law, a'term which is elsewhere accepted. The reason
apparently is that only an express or implied reference in a treaty
to the establishment of servitudesin private law seems to Sir Hersch
Lauterpacht to justify recourse to its rules. This, at any rate,
appears to follow clearly frorn the arguments contained in the
book "Private Law Sources and Analogies of International Law",
pp. 121 & 122, where attention is drawn to "the grave consequences
attaching to the construction of an international obligation as a
servitude" and to the necessity of resorting to it only "when there
isno doubt that the parties intended it to be a permanent relation
independently of who is the sovereign of the entitled or encumbered
territory".
This is practically the point of vieïv sanctioned by the arbitral
award given in the case of theNorth Atlantic Fisherles.
304. Does it follow that there are no other restrictions upon
territorial sovereignty than those Iaid down in agreements? Not
at al1,and Professor Guggenheim was careful in his oral statement
before the Court to recall the restrictions upon maritime navigation,
whose basis in custom is beyond al1 doubt. What \t7deny is that
such limitations can be derived from general principles of law in
favour of highly questionable analogies with servitudes recognized
in private law.
305. We have tostate that the Portuguese Government has cited
in support of its case no writingsby a publicist nor any decision of
the courts, lvhile it was careful to make no comment at al1 upon
the extracts frorn Sibert, Crusen, Vali, Reid, or on the extracts
from arbitral or judicial decisions reproduced in paragraphs 164 to
168 of the Preliminary Objection.
306. Summing up, it appears to us to follow clearly from the
foregoing that no compulsoryright of passage can be inferred from
the general principles of law either in favour of States possessing:
enclaves or in favour of continental States desiring access to the sea. PART VI
THE ABSENCE OF ANY OSLI(;ATION WITH REGARD TO
RIGHTS OF PASSAGE DEliIVING FROM SPECIAL
TREATIES OR SO-CALI-ED LOCAL CUSTOM
307. Portugal also puts forward in her Application and Memorial
as particular legal bases of her claim, certain alleged treaties and
an alleged local custom said to result from an ancient, continuous
and uniform usage with respect to transit between Daman and the
enclaves. She maintains that the alleged local custom amounts to
a historic titIe to the righfs which she claims but she concedes that
it really makes no difference whether this alleged basis of her claim
is treated as raising a case of "historic title" or simply "local
custom". Essentially, therefore,the particular legal bases on which
Portugal relies are treaty and local custom and there is no need for
the Government of India to make aiîy special reference to Portugal's
claim to a historic title.
305 When considering in detail the evidence and arguments
of the Portugueçe Goveriiment in regard to the alleged treaty right
and local custom, it is necessary to keep in mind the two rules of
general international law concerning limitations upon the exercise
of territorial sovereignty lvhich are set out in paragraph 279 above.
Under those rules there is a strong presumption against the exis-
tence of a limitation upon India's full power to exercise the normal
rights of sovereignty within her own territory. Under these rules
Portugal can only displace this presumption which exists in favour
of India by submitting clear and .itnambiguo~sproof of the specific
agreenzentof the territorial sovereign to the rights of transit claimed
by Portugal.It follows that both the alleged treaty right of transit
and the alleged local customary right must clearly and irresistibly
appear from the evidence submitted to the Court.
Portugal finds the origin of both her particular bases of claim-
both the alleged treaty right and the alleged local custom-in
transactions of the Maratha period. Later transactions are repre-
sented simply as applications and developments of the situation
created by the "Treaty of Punem of 1779'' and by the "Sanads"
giving effect to that Treaty. In the view of the Governinent of
India, itisa fatal flaw in the alleged treaty right and in the alleged
local custom that theyare stated tohave their origin in the Maratha
period. For the whole Portuguese :xgument in regard tothe trans-
actions of the Maratha period is founded on a fundamental miscon-
ception concerning the legal relation which then existed between
the Maratha Rulers and Portugal with respect to the enclaves.
This misconception is the mistaken assumption by Portugal thatthe "Treaty of Punem" and the "Sanads" operated as a cession
of the sovereignty of the enclaves to the Crown of Portugal.As has
been pointed out inPart II above, under these instruments Portugal
obtained merely a feudal tellure of the revenues of the enclaves and
a tenure which was revocable at the will of the Maratha Rulers.
The feudal and revocable nature of this tenure, as is explained
below, is totally incompatible with Portugal's thesis that during
the Maratha period she possessed under the alleged treaty and by
local custom rights of transit for the exercise of Portuguese sover-
eignty in the enclaves. In short, Portugal's misconception as to
the nature of the tenure altogether invalidates her particular
bases of claim-both treaty and local custom-in the Maratha
period. The point has such far reaching consequences for the whole
Portuguese case on treaty and local custom that it seems logical
to discuss first Portugal's position during the Maratha period in
regard both to treaty and local custom.
Treaty
309. In its Application (paragraphs 64, the Portuguese Govern-
ment claimed that its title to rights of transit between Daman and
the enclaves ofDadra and Nagar Aveliwas "acknowledged" (recolzlzu)
in the "Treaty of Punem of 1779" "between Portugal and the
sovereign of Punem, who at the time had dominion over the
territories of Dadra and Nagar Aveli". "It emerges from the said
Treaty", the Application continues, "that the Parties to it, in
addition to agreeing on the transfer of sovereignty over the terri-
tories in question, had the intention of creating and actuallycreated
a right of passage between the Portuguese territory of Dam20
(littoral Damgo) and the enclaves ceded and from each of these
enclaves to each other. Such right has thus belonged to Portugal
since that date, as a natural and indispensable complement of its
sovereigntyover the enclaves."
310.In fact, the document of 17th December, 1779, which is
described by the Portuguese Government as the "Treaty of Punem",
does not contain any reference whatever to a grant of rights of
passage in favour of Portugal. The Portuguese Government is
therefore compeiled to argue that the permanent rights of passage
between Daman and the enclaves, to which it now Iays claim, are
derived by implication from the so-called "Treaty ofPunem", and
the Portuguese claim to a treaty right is expressly put in this way
in paragraphs 13 to 16 of the Mernorial. The Portuguese Govern-
ment there asserts that in Article 17 of the "Treaty" the Maratha
Ruler undertook to cede to Portugal the sovereignty of villages to
the value of ~z,ooorupees and that afterwards it was the villages
of the Pargana of Nagar Aveli and the village of Dadra which were so ceded in full sovereignty to Portugal. It then contends that, by
necessary implication from these a.lleged grants of the villages of
the enclaves to Portugal in full sovereignty, she was given rights
of transit between Daman and the enclaves under the Treaty "as
an indispensable condition of the clxercise of her sovereignty".
3x1.The fallacious cha.racter of the Portuguese argument clearly
appears from the careful analysis of the contents of documents
of 4thMay, 177g111th January, 1780,and the 17th December, 1779,
the various translations niade of ihese documents, the negotiations
which preceded the drafting of these documents and of the grantç
subsequently made by the filarathas. There is more than one
serious objection to Portugal's thesis that she obtained the alleged
rights of transit under a. treaty as a necessary inference from a
grant of the sovereignty of the villages of the enclaves. The first
is that the documents of 17th December, 1779, and 4th May, 1779/
11th January, 1780, did not constitu.te atreaty between the Miirathas
and the Porkiguese. Quite apart from the fact that the Portuguese
never formally acceptect or approved the Maratha docunient of
17th December 1779, they did not even know what was in that
document; the Parties were not ad idem. Further, the text of Article
17 as it obtains in the Marathi original of the document of 17th
December, 1779, and the Portuguese original of the document of
4th May, 1779111th Janiiary, 1780, makes it clear that what that
Article 17 contemplated was merely a grant of revenue of ~z,ooo
rupees per ailnum from villages under Maratha sovereignty and
continuing to be under Maratha sovereignty, and the grant of the
revenues was to be in a tenure known as Saranjam or Jagir, which
was a grant revocable and terminalde at the discretion of the Mara-
tha Ruler. This mesns that it is impossible to presume frorn Arti-
cle 17 that the Maratha Ruler intended, as a necessary implication
from his grant, that Pcirtugal should have rights of trarisit for
troops, police, o@cials, i?zdividuals, ilzclz6dingforeigitaqzd goods
to the full extent necessary for the efective exercise of Portz~gztese
sovereignty in flze e~claves.Portug;il, in basing her claims on the
"Treaty of Punem", places great weight on the principle of "effec-
tiveness" as :Lprinciple of the intei-pretation of treaties. But, even
if full value is given to that principle in the interpretationof the
"Treaty of Punem", it does not follow at al1 that Portugal is
entitled to the rights of transit whii:h she now claimsThe principle
of effectiveness does not extend beyond reading into a treaty
ancillary provisions whicl-iare essential to the effectiveness of rights
actually and expressly gr;inted in the treaty. It woulbe completely
unwarranted application of this principle to imply from the grant
of revenues,the extensive transit rights for the exercise of sovereignty
which Portugal now clairns.
312.The second objection to the Portuguese argument is that,'
assuming a treaty existed between the Portuguese and the Marathas, .it is absolutely clear that the villages the revenues of which were
actually assigned in 1783 and 1785 were not in the contemplation
of the Parties in 1779: no villages were mentioned in Article 17;
and the abortive grant of 1780 related to the revenue of villages
which were contiguous to Daman and not away fromit.
The third great objection to the Portuguese thesis is that the
grants made to Portugal in 1783 and 1785 were grants in Saranjam
tenure, a revenue tenure which is revocable at will. The revocable
nature of these grants is abundantly proved by the evidence exam-
ined in paragraphs 84 to 106 above and in particular by the fact that
on three separate occasions the Maratha Ruler did infact exercise his
sovereign rights and temporarily attached the Saranjam for the
purpose of paying himself a debt owed to him by the Portuguese
(paragraph gg to Ior above). It is further proved bythe fact that
in 1817, immediately before the hlarathas lost their power to the
British, the Maratha Government had actually resolved upon
revoking the Saranjam of Kagar Aveli on the ground that "of
late no services had been rendered by the Portuguese to the Ruler".
(See paragraph Ioj above.)
313. In the submission of the Government of India, the revocable
nature of the tenure granted to the Portuguese, the periodic attach-
ment of the revenue and the resolution to revoke the tenure
establish beyond any possibility ofquestion that in 1779the Maratha
Ruler did not intend to, and did not in fact, cede the sovereignty of
the enclaves to Portugal. They thus provide a third, overwhelming
reason ivhy it is impossible to imply in favour of Portugal the rights
of transit which she claims "to the full extent necessary for the
effective exercise of her sovereignty over the enclaves".
The revocable nature of the Portuguese tenure and the resolution
of the hlarathas actually to revoke it in 1817 are also inconsistent
with Portugal's thesis from another point of view. Portugal claims
that under the "Treaty O£ Punem" she obtained by necessary
implication permanent rights of transit over the intervening terri-
tory which would be binding on the Powers which afterwards
succeeded to the sovereignty of that territory. In the submission of
the Government of India, there is no possible legal basis for implying
from a revocablegrant of revenue, permanent rights for the purpose
of exercising sovereignty.
314. In its Mernorial (paragraph 45),the Portuguese Government
also relied on another so-called convention of1785, the text ofwhich
itset out in Portuguese Annex 8.Thisinstrument içapparently des-
cribed in the Portuguese official register as an agreement for the
handing over of the Pargana of Nagar Aveli bythe Maratha Ruler to
Portugal and for insuring that it should be maintained in the
condition fixed by the terms of the agreement. Article II of the
instrument provided that the Portuguese were forbidden to build
any post or fortress in the Pargana and were under an obIigation tosuppress any rebellion by Kolis in the Pargana. Portugal contends
that the latter provision confirms that thegrant of the sovereignty
of the enclaves to Portugal in the Treaty of 1779 included a right
of military transit, for the despatch of military forces would be
essential for the maintenance or re-establishment of order.
315. This interpretation of ArticleII is, however, founded on the
false premise that Portugal had a.cquired the sovereignty of the
enclaves and that it was rebellion against Portuguese sovereignty
with which Article Ir was concer~ied. This instrument has to be
read in the light of the fiict that the enclaves had been granted to
Portugal not in sovereignty but in a feudal tenure. Article II
required the Portuguese, as the feucial service to be rendered to the
Maratha Ruler, to represç any rebellion in the enclaves against the
Marathas, not against Partugal. The Portuguese were forbidden to
construct any post or fortress, since these would constitute a
Portuguese threat to Maratha sovereignty in the enclaves. Accord-
ingly, the instrument of 1785 provides no basis for saying that the
Maratha Ruler had granted the Portugueçe a right of military
transit between Daman and the enclaves for the effective exercise
of Portuguese sovereignty.
Local Custom
316. The hurden of pi:oof which. lies upon Portugal, it may be
repeated, is to show by clear evidence the specific accepta.nce by
the Maratha Rulers of ailobligation to allow the transit of Portu-
guese armed forces, police, officials etc., for the effective exercise
of Portuguese sovereignty in the enclaves. Accordingly, any usage
with respect to transit during the Maratha period is only relevant
to the extent that it proves the specific agreement of the Maratha
Rulers to submit to the transit rights alleged by Portugal. Mere
proof of usage is not enough; the usage must provide unequivocal
evidence of the agreement of the Marathas to accord to Portugal
a right of transit for the effective ex.erciseof Portuguese sovereignty
in the enclaves. Nor is it., strictly speakinga question of showing
an opiaio ja~vison the part of the Marathas when allowing transit;
it is a question of proving their specific agreement to grant Portugal
a right of transit. The Government of India does not dispute
that during the Maratha period Portugal had agents in Dadra and
Nagar-Aveli for the collection of the revenues granted to her. The
extracts from the Maratha account books and other important
documents submitted to the Court in Indian Annexes C and E are
clear enough evidence of that fact. But this evidence is at the same
time completely fatal to Portugal's contention that during the
Maratha period a local ciistom was established recognizing t.hat she
possessed rights of transit for troops, police, perçons (including
foreigners) and goods between Daman and the enclaves of her
sovereign ty. 317. The reason is that, as previously stressed, the evidence
proves conclusively that during the Maratha period Portugal's
position in the enclaves was not that of a sovereign but of a
grantee of revenue under a feudal tenure revocable by the
Maratha Ruler. The Maratha Rulers not only themselves retained
revenue rights in the enclaves butat times intervened in Portugal's
collection of revenue in the enclaves, sending their own agents to
attach the revenues for themselves. In short, it is clear from the
evidence that such activity as there may have been by Portuguese
agents in the enclaves at this period was carried out under the
authority of the Maratha Rulers and merely for the collection of
revenue. This fact excludes the possibility of a local custom at this
time under which Portugal exercised rights of transit for the effec-
tive exercise of Portuguese sovereignty in the enclaves.
318. Under the intertemporal lalv Portuguese acts with respect
to the enclaves must be interpreted by reference to the legal
regime in force at the time. Since Portugal did not have sover-
eignty in the enclaves, there could be no question of rights of
transit for the exercise of such sovereignty. Any transit between
Daman and the enclaves that may in fact have occurred would be
explicable by reference to the revenue rights inthe enclaves which
Portugal held under limited and revocable tenure from the Mara-
thas. Any Portuguese agent making the transit would do s,~in the
quality of one engaged in business under the jurisdiction of the
hlaratha Government and having its authority to enter Maratha
territory for such business. The very facts of the situation and the
legal relation between Portugal and the Marathas are totally
incompatible with any intention on the part of the Marathas to
grant to Portugal rights of transit for the exercise of Portz~gues~
sovereignty in the enclaves. Individual cases of transit at that time
could not, therefore, provide any evidence of an agreement by the
Maratha Rulers to grant to Portugal rights of transit of the kind
which she now claims.
319. In the Mernorial Portugal did not produce any instance
of military passage from Daman to Nagar Aveli during the Maratha
period. She claimed that a military right of passage was illustrated
in letters from a Portuguese officia1tos Maratha officia1in which
the Portuguese officia1 had threatened to take militat-y action
against the Marathas. However, even that correspondence fails
to show any assertion of a legal right of passage on part of the
Portuguese official, or the acknowledgment of such right by the
Maratha official. A threat to take military action against the
territorial State does not amount to asserting a legal right to enter
itsterntory or to pass over it. hloreover, a Treaty o1741 expressly
forbade the entry of Portuguese arrned forces into Maratha territory.THEDISPLACEMEN OTTHE MARATH RAULERS BY THE BRITISH AND
THE ASSUBIPTION I~Y PORTUGA OF THE SOVEREIGNTY
OF THE ENCLAVES
320. If the Governmerit ofIndia is correct in its submission that,
by reason of the feudal and revenue character of the Portuguese
tenure of the enclaves, no rights of transit for the exercise of
sovereignty in the enclaves could arise in favour of Portugal during
the Maratha period, then it clearly follows that, on the termination
of Maratha rule in 1818, the British and Portuguese started with
a clean slate with respect to the question of transit. If formerly
Portugal had no rightOS transit, either by treaty or local custom,
across Maratha territory to the enclaves, she certainly would not
acquire one by the mere fact of t.he conquest and annexation of
Maratha territory by the British. If formerly the Marathas were
under no obligation, either by treaty or local custom, to accord
rights of transit to Portugal, there couldno question of a British
succession to a Maratha obligation.
321. The British conquest of tht: Maratha RuIer and annexation
of his territories in 181.8, it must be emphasised, resultedin a
fundamental change in the sovereignty of the enclaves as well as
in that of the territory over which Portugal now claims rights of
transit. On defeating the Maratha Ruler, the British compelled
him to execute a forma1 cession to the British Crown of al1 his
territories in the Northern Konkan which, in principle, included
Dadra and Nagar Aveli no less tl~an the territory lying between
them and Daman. The British, apparently unaware of the lirnited
nature of the Maratha grsnt to the Portuguese and under the
impression that the Portuguese had captiired the enclaves, made
no attempt to oust the Portuguese agents from them. The Portu-
guese, on their side, seein simply ro have suppressed the fact that
they held the enclaves only in Saranjam tenure and to ha.ve mis-
represented thernselves as entitled to them in fidl sovereignty.
At any rate, they unobtrusively assumed the sovereignty of the
enclaves as against the13ritish.
322. In 1818, therefore, the position was that both Portugal and
the British, though in different ways, had succeeded by annexation
to territory forrnerlyrtder the sovereignty of the Narathas. An
entirely new situation had arisen with respect to the sov<?reignty
both of the enclaves and the teri-itory over which Portugal now
claims rights of transit. This ncw situation was altogether incom-
patible with Portugal Iiaving rights againstthe British for the
exercise of Portuguese sovereignty in the enclaves. For the asscrtion
of Portuguese sovereignty in the enclaves was a usurpation of the
rights of the British obtained by zinnexation and cession from the
Maratha Ruler.
323. Accordingly the Governrnent of India submits thatin 1818:
(1)No obligation of any kind rested on the British to allow transitto Portuguese armed forces, police, officiais, etc. between Daman
and the enclaves for the exercise of Portuguese sovereignty in the
latter; (2) any subsequent exercise of Portuguese sovereignty in
the enclaves was in opposition to the British title to the enclaves
and could not, therefore, form the basis of a Portuguese claim to
transit across British territory.
THE BRITISH AND POST-BRITISH PERIOD
324. Portugal, therefore, is in the position that she can only
succeed in establishing a particular basis for her claim by proving
that she acquired the rights of transit which she claims either in a
particular treaty or by local custom after 1818. And she can only
do so by clear and unambiguous proof of the specific agreement of
the British or Indian Governments to grant her those rights. The
facts set out in Parts 1 and II above show that for a long time
after 1818 a regime of easy travel and intercourse prevailed through-
out India and that from a spirit of neighbourliness concessions and
privileges were from time to time allowed to the Portuguese with
respect to transit. They also show that from time to time reciprocal
administrative arrangements were made to smooth the day-to-day
commerce and administration of the respective British and Portu-
guese territories. It cannot, however, be too strongly emphasized
that in Iaw there is a wide gulf fixed between such neighbourly
concessions and arrangements and the legal rights which Portugal
claims in thiç case. Every State from time to time rnakes such
concessions or arrangements for the benefit of a neighbouring State
without having any intention of conferring rights, and least of al1
permanent rights, on the latter. It would have a most damaging
effect on the day-to-day relations between States if they could not
safely make such concessions or enter into such friendly working
arrangements without afterwards being held to have created
permanent restrictions on their sovereignty. There is a vast diffe-
rence between an intention to make a concession or to enter into
working arrangement for mutual convenience and an intention
to submit to a permanent restriction ofterritorial sovereignty.
325. Accordingly, it is not enough for Portugal rnerely to point
to a number of occasions when transit was allowed or to a number
of working arrangements in force from time to time. Portugal has
to make out from the evidence to the satisfaction of the Court
that on some occasion or occasions or in some particular agreement
or agreements, the British or Indian Governments evinced a clear
intention to confer the permanent rights of transit on Portugal
which she claims. Rlere invocations of examples of transit or of a
working arrangement do not, in the view of the Government of
India, advance the Portuguese case at all.
326. In fact, as the analysis of the evidence given below shows,
the concessions and agreements made during the British period with respect to transit were al1 of the neighbourly practicisl kind
into which States freely enter wit.hout in any way intending to
accept permanent limitations of their sovereignty. Neither the
particular "treaties" adduced by Portugal nor the particular
examples of transit afford proof O[ any agreement by the British
to confer permanent rights of transit on Portugal for the exercise
of her sovereignty in the enclaves.
Treaty
327. In the period between 1816, when British sovereignty was
established, and 1879, 1%-l-hhne A~iglo-Portuguese Treaty of Com-
merce and Extradition came into force, only twoarrangements were
made relating in any way to communications between Daman and
the enclaves. These were the arrangements of 1819 (paragraph 118
above) and 1861 (paragi-aph 129 above), both dealing with the
import into Daman of produce ofNagar Aveli.
328. The correspondence by means of which the arrangement of
1819was made showsclearly that thisarrangement did notconstitute
any permanent ground of a right of passage between Daman and
the enclaves. The arrangement applied only to products of Nagar
Aveli being sent to Daman. It did not apply to any goods inoving
in the opposite direction. And rvhen the Portuguese asked, in 1844,
that articles exported i'rom Daman to Nagar Aveli might be
exempt from British customs duties, the British refused to agree
(paragraph 123 above). Thus, all' that the British authorities
granted by the arrangement of 1818was an exemptionfromcustoms
duties on certain goods passing out of British Indiil into Daman.
This exemption, moreover, was griinted on a reciprocal basis, for
at the same time the Port:uguese authorities agreed that the inhabi-
tants of the British district of Bagwara should be alIowed to remove
certain goods from Nagar Aveli without payment of any duties.
It is also to be noted tha.t the arrangement did not confer upon the
Portuguese any absolute right to scnd any articles through British
territory. Its effect was sjmply that certain articles, if allowed to
pass through British territory, shoiild not be subjected to customs
duties.
329. Not only was this arrangement of a verylimited character,
and quite unlike the general right oftransit forgoodsbetween Daman
and the enclaves claimed by Portugal in her Memorial, it also
lacked the character of perrnanenci:. This appears perfectly clearly
from the fact that the British authorities in fact terminated it as
soon as they discbvered that itwas being abused. As has been seen,
the arrangement was broiight formally to an end in May, 184.9It.is
obvious from the correspondence that the British Government had
no doubt of their right to terminate the arrangenient whenever
they chose. The Portuguese Governrnent, too, seems to have sharedthis opinion, for there is no trace in the correspondence of any
protest or cornplaint by them at the termination of the arrangement.
330. Thus, the arrangement of 1819 was typical of the friendly
arrangements made for convenience by neighbour states without
any intention of creating, and without, in fact, creating, any per-
manent or irrevocable rights.
331. The arrangement made in 1861 was an exact repetition of
that of 1819. It applied once more only to produce of Nagar Aveli
being imported into Daman; it was necessary, as it had been under
the arrangement of 1819, for the goods to be certified as produce of
Nagar Aveli by the Governor of Daman;and al1that was conferred
was an exemption from customs duty, not an absolute right of
transit. The observations made about the arrangement of 1819 are
therefore even more applicable to that of 1861,
332. In 1878 was made the Anglo-Portuguese Treaty of Com-
merce and Extradition, This treaty did establish, by Article I,
"reciprocal freedom of commerce, navigation and transit between
the Indian dominions of" Great Britain and Portugal. It also
contained other provisions which have been summarized in para-
graph 139above. As a source of the rights which Portugal now
claims, however, the treaty can be dismissed at once because by its
express provisions it was only a temporary arrangement. Article 22
provided that it should remain in force for 12 years, after which
either party might give notice of terminating it, and only if no
such notice were given, was it to continue for a further period. The
British Government in fact gave notice of terminating the treaty
at the earliest opportunity, i.e., at the end of the first period
of 12 years. The'treaty, therefore, ceased to have any effect in
january, 1892. Whatever rights the treaty may have created
during the period of its validity, it has not conferred any rights or
imposed any obligations since 1892.
333. The treaty having thus lapsed, another arrangement relating
to the transit of goods was made, but thistime of very much more
limited operation than the arrangements of 1819and 1861.After the
termination of the treaty, the Portuguese authorities asked for free
transit through British territoryof al1 products passing in either
direction between Daman and the enclaves. This the British
Government refused to grant. They did, however, allow rice pro-
duced in Nagar Aveli to enter Daman free of duty. It is hardly
necessary to point out that this concession bore no resemblance
whatever to a special right of transit, and had nothing whatever
to do with the maintenance of Portuguese sovereignty in the
enclaves. Moreover, it was once more only a temporary arrange-
ment, teminable at the will of the British Government. As soon
as 1895 it became clear that the concessions had been inevitably
subject to abuse, and the British authoritiespromptly withdrew it. 334. No other agreement or arrangement was ever made granting
to the Portuguese any right to send goods, or any exemption from
customs duty of goods sent, between Daman and the enclaves.
There were various occasions on which the Portuguese tried invain
to abtain such concessions, and some of these wiii be mentioned
below for the light which they throw on the Portuguese degation
of the existence of a local custom giving rise to the rights which
Portugai now claims.
335. There were certain arrangements made at different times
between the British and Portuguese Govemments for the entry
of police of either power into the territory of the other. An examina-
tion of these arrangements shows plainly that they never gave rise
to any such generd right as is now claimed under which Portuguese
police in any numbers cciuld cross British terntory simply for the
purpose of maintaining Portuguese sovereignty in the enclaves.
On the contrary, these arrangem.ents 'were in each case either
temporary or of a most carefully limited scope.
336. The first such arrangement was made in 1913. Difficulties
having arisen because four armed British policemen passed through
Goa escorting two prisoners withoiit previous notice to the Portu-
guese authorities, the two Governments arrived at a reciprocal
arrangement. By this arrangement, police of either party were
allowed to pass through territory of the other when it was necessary
for thern to do so in discharge of their duties. It is to be ohserved
that the negotiations 1e;iding to this arrangement arose out of an
incident concerning merely four policemen escorting two prisoners.
It is clear from the correspondence that what the parties had in
mind was the passage of such srnail bodies of police in the ordinary
discharge of their duty. They did not contemplate anything
like the passage of a large body of police for the purpose of quelling
a popular insurrection. This infererice is supported by the fact that
the British Government in agreeing to the arrangement expressly
stipulated that it did not extend telarmed troops.
337. An agreement about the entry of British police oficers
into Portuguese territory and vice: versa, was made between the
Governrnent of Bombay and the Government of Portuguese India
in 1920. This agreement provided that armed police of either party
might enter the territory of the other in actual pursuiof an offender,
but might not otherwise enter the territory of the othes party
while escorting prisoners without first obtaining that otherparty's
permission. It alsolaid down conditions on which the police of either
party might enter the territory of the other for the purpose of
carrying out duties or inveçtigating offences. It did not confer upon
either party any right of sending police into the territory of the
other simply for the purpose of tra.nsit. It is thus irrelevant to the
claims made by Portugal in the present proceedings. The last of the
arrangements relating to the police was made in 1940. This was an
1I146 COUNTER-MENORIAL OF INDIA (III58)
agreement for transit. However, it referred only to the main road
between Daman and Nagar Aveli; it was a reciprocal arrangement,
this road passing more than once into and out of the territory of
either power; it permitted the passage only of parties of police
not exceeding ten in number and it required twenty-four hours
notice to be given.Itis quite clear, therefore, that this arrangement
also fell far short of the granting of a right for the purpose of the
full exercise of Portuguese sovereignty in the enclaves. Moreover,
the records of the Governor of Bombay do not indicate that the
Portuguese authorities ever tried to make any use of this arran-
gement.
338. One other arrangement which should be noticed was that
made in 1908 for the carriage by British and Portuguese officers
of their persona1 arms through Portuguese or British territory,
respectively. The two Governments agreed that British officers
passing through Goa on their way from one part to another of
British territory should be allowed to carry their firearms without
let or hindrance, and a similar concession should be alIowed to
Portuguese officers passing directly through British territory from
one part of Portuguese territory to another. This arrangement, it
will be noted, did not apply to any consignments of firearms but
only to the persona1 arms carried by officers. It therefore had
nothing to do either with the maintenance of communication
between Daman and Nagar Aveli or with the exercise of Portuguese
sovereignty.
339. Throughout the period from the origin of British sovercignty
in 1817 to the insurrection in the enclaves in1954, no agreement
was ever made conferring upon the Portuguese Government any
right at al1to send military forces into British territory. Artic18
of the treaty of 1878 did, as has been seen, provide that the armed
forces of one party might enter the Indian dominions of the other
at the request ofthat other, or for rendering mutual assistance under
the tems of the treaty, or for the purposes specified in former
treaties (which have been shown to be irrelevant to the present case).
Apart from these special cases, Article 18 provided expressly that
the armed forces of one party should not enter the Indian dominions
of the other. Since 1817, therefore, there has never been any
arrangement or agreement upon which the Portuguese Government
could rely for a right to send troops from Daman to the enclaves
or vice versa.
Local Castom
340. In considering the evidence of local custom during the
British period, it is necessary first, to recall that Portugal, in order
to establish her claim, must show not a mere usage, but something
amounting to a specific agreement by the British authorities,
granting to Portugal a right of transit. Very little need be added to the summary already given of th<history of the territory for the
purpose of showing that rio such agreement was ever made.
341. As regards the transit of goods, the very agreements which
have already been discussed are, themselves, evidence of the ab-
sence of any local custom such as that upon which Portugal relies.
These agreements were nc~tmade for the purpose of regularizing or,
as it were, codifying the existingi:tices. Rather, on each occasion
the Portuguese complained of existirig circumstances and asked that
an agreement be made to change them. In 1848, and again in 1895,
when the British Governrnent terminated such arrangements, they
did so expressly because the arrangements having been abused,
they desired to revert to the different position which in each case
had obtained before the arrangement was made. 1s is clear, there-
fore, that this is not a case in which express agreements Fan them-
selves be put fonvard as evidence of the existence of a custom.
Moreover, the same conclusion is supported by the many atternpts
which urere made by the Portuguese after 1895 to obtain a re-grant
of the exemption from duty of rice grown in Nagar Aveli, and, also
from the series of proposals put fonvard by them between 1909 and
1923in the negotiations arising out of the smuggling of liquor from
Portuguese territory into British territory and the steps taken by
the British Government to prevent it. Had a local custom existed by
which the Portuguese were entitled to free transit of goodsbettveen
Daman andthe enclaves, they wouM have had no reason to ask the
British Government, as they repeatedly did on the occasioris just
mentioned, to grant eitht:r particular or special exemptions. The
position, indeed, is even clearer than this. As has been shown,
there were numerous occasions on which the British Government
prevented transit of certain goods between Daman and the enclaves.
Most of these prohibitions were directed to stop the distilling of
liquor in Portuguese territory, an operation whick for the Portu-
guese Government was financially very important. On nisne of
these occasions, however, did the Portuguese Governmenr everi
allege tliat there uras any local cusiom which the British embargo
was violating.
342, With respect to passage of troops, passage of police (subject to
the particular agreement of 1920 already noticed), and transit of
arms, the position is thesame. In order to establish this clairn, the
Portuguese Government would have to show the existence of a local
custom amounting to the grant to tliem of a right. So far fro~nthis,
the evidence lvhich has been citeil shows that when parties of
troops, or even individual soldiers, wished to pass through British
territory, permission was invariably asked. Permission was simi-
larly asked for the despatch of consignments of arms,and even for
one or two sporting guns. The 1angu.agein which these applications
were made shows that thç:Portuguese Government recognized that
on each occasion they were asking for something which the BritishGovernment was free either to grant or to refuse.Itis inconceivable
in the submission of the Government of India that the Portuguese
authorities should so have conducted themselves, if al1 the time
they possessed a right to send through British territory such troops,
police and arms as were needed for the maintenance of Portuguese
sovereignty in the enclaves, and the mere making of these repeated
applications shows that no local custorn amounting to the grant of
a right ever existed. Itisparticularly to be noted, moreover, that
the Portuguese authorities never drew any distinction between
communication with the enclaves and communication between
other Portuguese territories. If it uras desired to send troops or
arms to the enclaves, permission was asked in exactly the same
way as it was asked when troops or arms were being sent (e.g.)
through Bombay on the way from Goa to Daman. In other words,
the geographical position ofthe enclaves was never made by the
Portuguese Government a basis for any claim of special rights.
Such a claim is made for the first time in these proceedings. In the
whole penod between 1817 and 1954 it is impossible to find any
agreement or local custom by which such a claim might be justified. PART VI1
THE IMPACT ON THE PASSAGE CLAIMEDOF THE
EVENTS WHICH HAVE TAKEN PLACE IN
DADRA AND NAGAR AVELI
343. The Govemment of India contends that, even if before the
insurrection Portugal did in fact possess the rights of transit which
she claims,these rights were not applicable in the case of the general
insurrection of the people of the enclaves.
344. The actual circumstances of the insurrection in Dadra and
Nagar Aveli whereby the peoples of the enclaves freed themselves
from Portuguese rule have been set out in PartII above. The rights
which Portugal claims in her Application and Mernorial are rights
of transit overIndian territory for :Portuguese armed forces, police
and officials etc. "to thextent recluired for the effective exercise
of Portuguese sovereignty in the enclaves". Even if Portugal could
satisfy the Court that shi: possessed these rights in virtue of sorne
treaty, custom, or general principle of law, ites not at allfollow
that they would hold good in the circumstances of a general insur-:
rection of the people of the enclaves. On the contrary, there are
four separate reasons why India cannot be held to have been under
any obligation to grant transitto Portuguese armed forces, police
and officials for the purpose of suppressing the insurrection in the
enclaves.
345. First, transitfor the purpose of the normal day-to-day
exercise of sovereignty in an enclave is a very different thing from
transit for the purpose of suppressing an insurrection of the whole
population and of keeping the people of the enclave forcibly in
subjection. A right of transit for the latter purpose would require
the State, acrosswhose territory the transit waçmade, to becorne
an accomplice in the operations to suppress the insurrection and it
would gravely embarras the territorial State. There would be a
very strong probability that the people in insurrection would
oppose the entry into the enclave of the armed forces, police or
officials sent to reduce them into siibjection. There would for that
reason be a great risk of hostilitie:; or riots at the borders of the
enclaves and even within the territory of the State granting transit.
This risk would be al1 the greater in the case of enclaves which,
likeDadra and Nagar Aveli, have no frontier posts or baniers of
any kind between them and the surrounding temtory. Portugal's
claim to rights of transit for armed forces, police, officialç, etc.,
for the purpose of.suppressing a general insurrection is therefore
a claim of an entirely different order from a claim to rights oftransit for the purposes of normal day-to-day administration. In the
view of the Government of India, a right of transit for the effective
exercise of sovereignty could not be considered to embrace transit
for the purpose of suppressing a general insurrection without the
clearest proofs that such was the case. In the present instance,
however, Portugal has recognized in the rnost express terms that
any rights of transit she may have are without immunity from
India's jurisdiction and, therefore, subject to the requirements
of India's public order in the temtory over which the transit is
made.
346. Accordingly, the Government of India submits that any
rights of transit which Portugal rnay be held to have possessed
"for the effectiveexercise of Portuguese sovereignty in the encIaves"
cannot be held to require India to grant transit facilities to Portu-
guese armed forces,police and officialsfor the purpose of reimposing
Portuguese mle in the enclaves.
347. Secondly, few principleç of international law are better
established than the principle that a State in a civil war or insur-
rection rnay adopt an attitude of complete reserve and neutrality
as bettveen the Governrnent and the rebels. The most familiar
application of this principle is the right of a State, if the extent of
the hostilities and the circumstances of the rebels justifies it, to
accord the Iatter the status of a lawful belligerent in war. That this
principle is not confined to the extreme case of a recognition of
belligerency is very clear. In the case of The Three Frzends, for
example, the United States Supreme Court held that recognition
of a condition of political revolt, as distinct from recognition of
belligerency, operated to bring United States neutrality laws into
play. The general principle is that stated in Judge Lauterpacht's
book, Recognitii onInternational Law :
"With regard to the acts of the insurgents on land, when such
acts do not cause injury to foreignStates or theirsubjects but are
merely manifestations of arevolt against the constituted authority,
outside States have no reason to express an opinion or to adopt
an attitude.They arenot boundorentitled toCO-operaite the suppres-
sionofthetreasonableactsoftheinsurgentsagainslthelaiyitsauthority."
In the view of the Government of India, any rights of transit that a
State rnay be held to possess across foreign territory for the purpose
of exercising its sovereignty, in an enclave is subject to the right
of the sovereign of the intervening territory to adopt a policy of
neutrality in case of a general insurrection in the enclave. In other
words, it is subject to the right of the sovereign of the intervening
territory to refuse transit facilities for the purpose of "the sup-
pression of the treasonable acts of the insurgents".
348. In this connection, it is significant that in the case of the
Wimbledonit was only the specific provision in the Treaty ofVersailles that the Kiel Canal should be free and open to al1vessels
of all nations at peace with Germany which made the right of transit
prevail over Germany'ç right under general international law to
impose a policy of neutrality with respect to passage through the
Canal. The Court held the clear and unambiguous meaning of this
provision to be that the right of transit should always be exercis-
able by the vessels of al1 nations not themselves at war with Ger-
many and that this precluded a refusal of transit for reasons of
neutrality in a war between two other States. Even so, despite the
express grant of transit to thevessels of ailnations ratpeace wilh
Germany, two very distinguished members of the Court, Judges
Huber and Anzilotti, held that Germany's right under general
international law to be rieutral in a war between two otber States
prevailed over the rights of transit granted in the Treaty.
349. Accordingly, the Government of India submits that on this
ground also any rights of transit which Portugal may be held to
have possessed "for the effective eaercise of Portuguese sovereignty
in the enclaves" did not oblige India to allow the transit of Portu-
guese armed forces, police and officials for thepurpose of suppress-
ing a general insurrection in the enclaves.
350. Thirdly, whatever views inay be held as to the precise
scope of the obligations imposed upon Membcrs of the United
Nations by one or more provisioiis of the Charter, it cannot be
doubted that they must not lend their aid or have any part in or
give any assistance to any action calculated to suppress by force
the efforts of people who either seek to establish or have in fact
established their liberty. It follows, therefore, that in the present
case, having regard to the successful endeavours of the people of
these enclaves to free themselves from foreign rule and to assert
their rights to freedom, a Mernber of the United Nations is entirely
justified under at least a moral obligation according to the Charter
not to take or permit any measures for the transit of troops, police
or officials of foreign power across its territory against the people
who have so established their freedom.
351. For the consideration of th.eCourt the Government of India
submits that on this further grou~id,even if it be argued that there
uTereany rights of transit which Portugal map be held to have
possessed "for the exercise of Po~tuguese sovereignty in the encla-
ves", they do not oblige India to grant, or justify her in granting,
facilities for the transit of Portuguese armed forces, police and
officials across its terntory, al1 the more so when the daim of
Portuguese sovereignty in the territory to which ingress is sought is
challenged by the efforts of the people in their assertion of their
political and human rights.
352. Finally, the Government of India contends that in ariy event
account has now to be taken of the existence in the enclaves of a de facto local government. The steps by which the peoples of the
enclaves set up a local authority have been explained in Part I of
this Counter-Mernorial. There now exists in the enclaves an Adminis-
trative Council, an Assernbly of the People, and a Judiciary, which
have been functioning for over three years with al1 the regularity
and effectiveness of a government. This government administers
the enclaves on a de facto basis independently of both Portugal
and India.
353. The Government of India has limited its contacts with the
de facdolocal government to the minimum required for the day-to-
day conduct of local relations. Such contact as there is between the
Government of India and the authorities of the enclaves is through
local officials and in such day-to-day rnatters of administration as
police, posts, transport, etc. The measure of recognitio~i givcn by
the Government of India to the authorities of the enclaves is not
therefore recognition as a government of a State; it is only a limited
recognition of those authorities as a de factoand provisional admi-
nistration in effective control of the territory of Dadra and Nagar
Aveli.
354. That insurgents may set up a governmental authority in the
areas which they effectively control and that the authority so set
up may receive from other States a measure of recognition as a de
facto provisional government is well settled. The Government of
India refers in this connection to Chapters 16 and 17 of Judge
Lauterpacht's book on Recognifiow in International Law, where a
number of precedents are examined. The legal nature of such de
facto local governments has recently been discussed by Professor
G. Morelli in his lectures at the Hague Academy in 1956. Professor
Morelli said :
"Outre les États et les entités dépendant de ceux-ci que l'on
vient de considéreret qui ne sont pas toujours des États, il y a
d'autres groupes sociaux organisésqui sont pourvus de la person-
nalité juridique internationale,
Tel est lcas d'un parti insurrectionnelqui a aboutà une certaine
organisation territoriale, c'est-&-dàune organisation qui contrôle
de fait une partie du territoire d'un État, empêchant,en cet espace,
l'exercice des pouvoirs de la part du méme État. Que le parti
insurrectionnel ait un but séparatiste, qu'ilvise, en d'autres termes,
à détacher une province de l'État contre lequel l'insurrection est
dirigée,ou bien qu'ivise,par contre, às'emparer du gouvernement
de l'État dans son ensemble, tout cela n'a aucune importance. Ce
qui importe, ce n'est pas le but de l'insurrection, mais seulement le
rapport de fait qui,A un moment donné, existe entre l'organisation
insurrectionnelle et une portion du territoire de l'État; il faut, en
d'autres termes,qu'il sesoit établicequel'on appelleun gourlernement
de faitlocal,par opposition au gouvernement de faitgéneral."
355. The Government of India submits that the existence of an
established de facto government in the enclaves isan additional COUNTER-MEMORIAL OF INDIA (III 58) 153
consideration which further justifies India in maintaining that any
rights of transit possessed by Portugal are not exercisable in the
situation which now obtains in the enclaves. It is no longer a ques-
tion of rights of transit for the purpose of exercising Portuguese
sovereignty in the enclaves. Itis a question of rights of transit for
the purpose of ousting a rival governrnect in the enclaves and of
reimposing Portugiiese rule. .
356. It is rnanifest that Portugal's claim to transit across Indian
temtory.for her armed forces, police and officials for the purpose
of exercising sovereignty in the enclaves is of vital concem to the
de factolocal government. The Portiiguese claim has no other object
than toobtain entry into the enc1avr:sfor the purpose ofre-imposing
Portuguese rule and putting an end to the de factolocal government.
This is not t'rierefore a case which simply concems Portugal and
India. It is a case which concerns I'ortugal, India and the de Jacto
government and the judgment for which Portugal asks iç one which
the Court cannot give without encroaching directly on the rights
of the de facto local government, which is not itself before the
Court.
357. In the submission of the Government of India, the existence
of the de facto local government in the enclaves is yet another
ground precluding the Court from holding that India is under an
obligation to permit the transit of Portuguese anned forces, police
and officials from Daman to the enclaves. PART VI11
THE CONCLUSIONS
358. The Government of India believes that it has proved:-
I. that the claim presented by the Portuguese Government
is of such a vague nature that it is susceptible of many different
and opposite interpretations, that it appears impossible for them
al1 to be proved to be legally well-founded, and that even the ad-
mission of the claim would leave the Parties in doubt as to their
rights and duties (Part III);
z. that the right or rights of passage claimed by Portugal do not
find any legal basis in any general convention or on any general
custom or general principle of law (PartV) ;
3, that no proof has been given by Portugal of any local usage
having a binding character on the Parties and that the special
conventions mentioned by Portugal neither contain nor imply
stipulations about the claimed rights of passage (Part VI); and
4. that even if proofs had been given of the existence of such
rules af law or specific obligations none of them would have any
connection with or application in the very special circumstances
which have lately prevailed in the enclaves and which would in
themselves sufficeto justify an exception toany such rules (Part VI.)
359. If the Court accepts these contentions how will the decision
be framed?
The Court may at its discretion reject the claim as ill-founded
or it may declare itself incompetent either because the object of
the claim falls under the exclusive jurisdiction of India (Fifth
Preliminary Objection) or because the situation out of which the
dispute arose already existed before the compulsory jurisdiction
of the Court had been accepted by India (Sixth Preliminary Ob-
jection) or because the claim does not fa11under any ofthe cate-
gories of dispute for which the Court has received jurisdiction from
the Parties or because the decision which it is asked to give is not
one upon which the Court is empowered by the terms of the Statute
to adjudicate.,
360. None of these points require further development at this
stage with the exception perhaps of the last one which when ad-
vanced by Professor Guggenheim at the Oral Hearings was met by
Professor Bourquin with the objection that it could not be retained
by the Court as it had not been preçented in the Preliminary Ob-
jection (Oral Proceedings, IV, p. 186).
361. Even supposing the Portuguese answer was correct when
the debate was limited to the preliminary objections it could notpossibly be valid here sirice the objection appears to be intimately
connected with the other objections already formulated by the
Government of India as well as with her defence on the merits.
Indeed in a matter which normally falls within the sovereipty of
a State when a claim asking for an exception from or limitation
of sovereignty is declared ill-founded, it amounts to nothing more
than to recognize the fact that the object of the claim has remained
under the exclusive jurisdiction of the State, and at the sarne time
the fact that the Parties not having agreed to give to the Court the
power to decide ex aequo el bono the dispute lacks any of the legal
aspects which would have made it justiciable and that accordingly
the Court has no jurisdiction.
362. But there is more: in the present case it appears doubtful
that even if the Parties ba common declaration might have allowed
the Court to give a decision ex aequetbonoon the Portugueçe claim,
the Court would have been able to accept this invitation (which
of course has not even been contemplated in the present case).
Indeed as was indicated by Sir Frank Soskice in his address on
26th September, 1957 (Oral Proceedings, IV, p. 74) and fully
developed in Part III above, the vagueness of the claim is such that
even an affirmative decision would leave the Parties in doubt as
to the extent of the obligations resulting therefrom for India.
Nothing less than elaborate regulations would be needed to
determine what in future would be the rights and duties of the
Parties. Now it has been contended by Judge Kellogg in the famous
opinion he gave in the case of the Free Zones (Order A 24) that it
was not within the poxer of the Court to draft regulations. The
Government of India has every reason to believe that this inter-
pretation of the mission of the çupr,emejudicial organ of the League
of Nations recommends itself also to the present Court.
363. For the above reasons may it please the Court to declare
that it has no jurisdiction to decide on the claim presentedby the
Portuguese Government., and, in the alternative, to declare the
daim ill-founded.
(Signed) JOHN ALOYSXU TSHIVY.
Agent of the Government
ofIndia.
March, 1958.Annexes tothe Counter-Mernoril f the GovernmeofIndia
ANNEX A
jReprodz4ced after the Prelirnina9.yObjection of the Governmenl
O/ IndiaVol. 1$p. 189-2131
ANNEX B
[Reprodzdcedafter the Preliminary Objection of the Government
oJ India, Vo1,pp. 215-zzz]
ANNEX C
[Reproduced after the Preliwtinary Objectionof the Government
of Ipzdia, Volpp.223-5641
ANNEX D
[See next page] 158 ANNEXES TO COUNTER-11EMORIAL (D NO. 1)
Annex D. No. r
The Secretary to Government
Bombay, 15 Dec. 1875.
Sir,
1 have the honour to submit the following report and proposals for
the re-organisation of the establishment on the Dumaun frontier.
2. It is th'eduty of this establishment to prevent the illicit importation
of salt, and to collect Land Customs on dutiable goods passing into and
out of Dumaun. It will be convenient to consider the Estabt with
respect to its collecting and preventive duties separately1 will take
its collecting duties first, and will ask Govt. to look at the sketch map
annexed which shows the lie of the country and the positions of the
frontier posts.
3. It willbe observed that the Durnaun territory consists of two
tracts-the purgannas of Damaun and Nagar Havailee-which are
çeparated from each other by a strip of British territory, part of which
pertain to to thePandi taluka of Surat, and part to the Sanjan taluka
of the Tanna district. The cordon of Custorns posts is drawn round the
Dumaun purganna only-Nuggar Havailee lies inland and has no salt
water or navigable water communication with the sea, and is left un-
guarded. Land Customs are collected at the nine posts marked in red
letters on the map: the other posts are closed posts, and no goods are
allowed to pass them.
4. Statement No. 1 shows the gross average collections at each post
for the last IO years, and the estimated realization at the new Tariff
rates. Statement No. II contains similar infn"; with details of the actual
and estimated realization on each dutiahle article. Including salt the
gross collections at old Tariff rates amount to 9567, while under the
new Tariff they will yield butRs. 4762,The gross estimated collections
at each post are shown in the margin. A glance at these figures shows
that itis unnecessary to maintain all
Rs.a.D. these postsKunta and Challa areboth
4: : : :: : : : 248 2:: on the made road between the town of
4. Hatiawa. .. . . .. 17. 7. 8 Damaun and the Railway station, and
5. ,-hal. . . . .. . 5i g :: tho' both posts must be maintained a
'.Pa'sat. . . . . . .1246. 9. 1 single collecting estabt will serve for
8.Rambhayat . . . . . : both of them. Palsat and Pathurpunja
9. Kalai. . .. . . . 71.10.10 are only half a mile apart, and the
4762, 3.1i concentration of the duty paying traffic
on one of the two posts can cause no
inconvenience while the duty paying traffic at al1 the other posts is
insignificant, and will not repay the cost of collection. 1 propose therefore
to abolish al1the duty posts except those at Kunta-Challa and Pathur-
punja. Dutiable goods can also be allowed to pas5 at Kolak and Kalai,
the duty being collected by the Sea Customs estabt. stationed at those
places. The Dumaun parganna is only about g miles long(N toS) about
5 miles wide(E toW) none of its villages, except Dumaun itself have any AXNEXES TO COUNTER-hIEMORIAL (D NO. 1) I59
trade to speak of, and the three operi posts proposed are sufficient to
accommodate the traffic in duty paying goods without inconvenience.
The traffic that cornes by way of Rarribhayat will have to make a very
small detour if sent round by way of Patharpunja, while that which
passes by way of Hatiatvar and Rosa al1 goes on to the main road and
can pay duty equally convf:niently at Runta.
5, The total of our Land Customs demands on Dumaun trade is so
insignificant and out of proportion to the expense of collections, that 1
should have submitted for consideration the propriety of remittlng the
duties altogether, were itriot for the necessity of maintaining frontier
establishments to control the importation of salt.
6. As regards salt, matters are much more serious. Dumaun, with an
area of only22 square miles, and a population numbering 28,000 perçons,
has some 40 small salt works (their positions are,shown on the map) wh.
produce at least roo,ooo mils a year. 1:have visited these works myself,
and my Asst. Mr. Faulkner has also examined them very carefully, and
I have no doubt that this estimate is within the mark. The legitimate
recorded importation of Dumaun Salt along the whole Western Coast
from Kattywar to Ceylon average only 27,462 mds. 1 rather thirik that
some of the importation into Travancore wh. are recorded as Durnaun
salt are really Goa Salt. Tlie duty paid importations of Salt across the
land frontier are only Incl. rnds. 500. The people of Dumaun cannot
consume more than 7000 nids., and supposing zo,ooo l mds. to be used
in fish curing, some 50,000 mds. remain unaccounted for, except on the
hypothesis that they are çniuggled.
7. There is no doubt tha.t smuggling on an extensive scale is carried
on across the land frontier. The salt ij mostly carried in head-loads by
bands sometimes numbering as many as xoo men. In May last 19 of
Our sepoys met a band of about zoo nicn, and captured 6 prisoners and .
215 head loads of salt. On ailaverage 40 seizures arc made on.the frontier
every month, and the average number of head loads to each seizure is
about IO. The proximity of Nagar AveIi and Dharampore anci Print
tei-ritory to the Dumaun frontier (vide map) conduces to smuggling.
The smugglers are mostly U'arlis Duhlas, hired for the occasion by persons
who dispose of thc contraband Salt.
8. The Dumaun frontier estabt has never borne a good name. Itwas
believed a few years ago that Our own men bought salt in Dumaun,
and reported jt as seized on the froritier, in the expectation of being
rewarded from the sale proceeds. And though 1 have endeavoured to
stop this practice by refusing to give rewards except in cases where
smugglers as well as salt are seized. 1cannot help thinking that a Dubla
is now and then hired to impersonate a smuggler and take his yunishment.
This is not so improbable a.sit might seem, because the Mgtes. who try
frontier smuggling cases seldom award more than a few days simple
impt. against smugglers, and a day or two confinemerit in a lock-up
with no work and good food is no punishment at al1 to ahalf wild Dubla.
1 1 much doubt if so much aszo,ooo mds. is used for this purpose, no fish
salting is carried on at Dumaun itself. The Dumaun fishermen catand saltfish
offDiu in Kattywar, and much of the salt theuse is the produce othewater at
Diu and in itneighbourhood.1b0 ANNEXES TO COUNTER-MEMORIAL (D NO. 1)
9. 1 am sure that the smuggling will not be putdown without a strong
effort, nor without European supervision. It is the experience of- the
Inland Customs Dept. that European Patrols arenecessary in such cases
to lead the men and get proper work out of them. 1 beg accordingly to
recommend the appt. of two European Inspectors, one on Rs. 300, the
other on Rs. zoo a month. Each will have a beat of about 12 miles to
look after. With their assistance and a small increase in the number
of men, 1 have every confidence that from Rs. 50,000 to Rs. roo,ooo
will be added to the revenue every year.
IO. But it is also necessary that the Mgtes should award deterrent
punishments against convicted smugglers. The Sub Mgtes at Nubargaon
and Pardi who try the cases from the Dumaun Frontier very seldom give
a man more than IO days imprisonment, and their sentences are usually
as low as a fine ofRs.2 or in def. 3days simple impt. Smuggling across
the Ind. Custom line is punished much more heavily. It appears from the
Coast. Land Custom report that the average punishment inflicted in the
1722 l cases disposed of last year was45 days imprisonment, and 12 Rs
fine, The salt Act contemplates punishments extending 6 mths. ng.
impt. and Rs. 500 fine. In reviewing my Adm.n. report last year the
Govt. expressed a hope that Mgstes should punish Salt smugglers with
increased severity, but this expectation has certainly not been realised
so far as the Pardi and Numbargaon Mgtes are concerned.
II. The duties of the frontier Sepoys are as onerous, anas dangerous,
as those of the Police, and their pay, which at present is Rs. 5; and
Rs. 6 should 1 think be raised to that of the Surat Police, along with
whom they have to work on the frontier. They should also be armed and
accounted and put thro' a course of drill-as smugglers when in large
bands not infrequently show fight, and hurts and wounds are by no
means unknown among Our men on the Damaun frontier.
12. The length of line to be guarded is about 25 miles-1 would re-
commend that the posts be placed about 314of a mile apart; that each
be manned by 4sepoys; that a Havildar or Naik be apptd. tothe charge
of each set of three posts; and that 3 Jernadars be apptd. to assist the
European Patrols, and to take subordinate charge of the three sections
of the line.A number of new Chaukies will have to be built, and accom-
modation rnust also be provided for the European Officers. But in view
of the conternplated Commercial & Salt Treaty with Portugal for her
Indian settlements 1 would not recommend the immediate constructions
of permanent buildings. A grant of Rs. zooo will suffice for temporary
constructions that with small repairs will last for several years, and to
an expenditure of that amount 1solicit sanction.
. 13. The collecting and prev. establishments should be distinct and
independent of each other. But the preventive men will check goods
at the frontier posts that have been passed at the duty posts.
14. Statement No. III shows details of the strength and coçt aggre-
gating Rs. 14,087 a year, of the present estabt. Statement No.IV shows
similar details for the re-organized estabt. herein proposed. Its total
cost isRs. 30038- 8year, but of this amount of Rs. 6600 is on account
1 Smuggling salt across the Inland Custom Line.
A free mess aRs.5 & Rs. 7. ANNEXES TO COUNTER-MEMORIAL (D NO. 1) 161
of European Supervision. The total iricrease of expenditure solicited is
Rs. I5957-8a year, and 1 am very confident that this increase of expen-
diture will result in realizationofrevenue of very much greater amount.
15. With the permission of Govt. 1 will abolish the duty posts at
Palsat, Rarnbhayat, Hatiawar and Rosa from the 1st January next
and from the same date reduce the whole frontier couecting Estabt. to
the strength proposed in St.atement No. IV.
1have etc.
(Signedj
Collector of S.R.
No. 7571 of1875.
Copy fwd to Mr. Fau1E;nerfor inf:
No. 890 of 1876
To,
A. 0. Carry, Esquire,
Acting Collector of Salt Revenue
Bombay Presidency.
Camp Kunta,
14th May, 1876.
sir,
Wth reference to corresliondence noted in the margin, 1 beg to submit
the following report on the re-organisation of the Darnaun Frontier,
Preventive Establishment.
2. The annexed map
Coilector's lettoGovernment No. 7563. of15thDe- shows the whole extent
cernber 1875. Govt. Reso: N861 of22nd July.1876. of Portuguese Territory
Govt. Reso: No. 1762 o20thMarch 1876. and Collr's guarded by the Frontier,
endorsemen tereon No. 1679 of22nd idem. Collr's and portions of
letteNo. 1731 of23rd March 1876.
British territory sur-
rounding it.The green color indicates Portuguese, and the red British
territory situated on the left bank of the Daman Ganga river, is in
the Surat Coilectorate, Pardi Taluka; and that on the right, in the
Punna Collectornte, inthe Umergaun Taluka.
3. The bIack dots indicat.e the sites of thold Nakas; and the red ones
the sites of the new, whicl-Lhave been established since the 1st Instant.
The number of old Nakas was 23, and the number of the new ones IO,
thus making a total of 33 Nakas under the new arrangement. The sites
of the old Nakas were on the whole, not badly seIected, but 1 am of
opinion that, they should be al1removed, and brought oiit further in the
plains, and thus form one connected Cordon round the Frontier. When
thus pIaced, the Nakaç will be in sight of each other, and the peons
stationed at them, wilI be able to keep up a communication throughout
the Frontier. The Blue Zineon the map, with the blue dots on it, indicate
the positions of the proposed line, and sites of the Nakas.
4.The whole Frontier isdivided into two distinct Divisions, separated
by the Damaun Ganga river; which are generalIy spoken ofas the Bagwara
and Umergaun Suuhuds. Under the new arrangements, each of the
12 162 ANNEXES TO COUNTER-MEMORIAL (D NO. 1) .
Inspectors will have independent charge of one of these Divisions. The
Bagwara Division is composed of two lines, lying due North and East.
The Northern line commences at Kolak Pur Naka, and ends at the Bag-
wara Ferry Naka, a distance of about 6 miles, and runs along the banks
of the Kolak or Bagwara river. The Eastern line lies parallel with the
line ofrailway, and extends from Bagwara Ferry Naka to Golee-Arnboo
Naka, on the left bank of the Damaun Ganga river, a distance little
short of 7 miles.I have established 9 Nakas in the Northern, and 12 in
the Eastern lines, thus giving21Nakas over a distance of nearly 13miles.
Under the old arrangement, there were only 6 Nakas in the Northern
and 7 in the Eastern lines. Al1 the Nakas are pretty equi-distant; but
care has been taken to place them in such positions, as to command the
most favorite runs of smugglers across the Frontier. The disposition of
the peons, Umalders, etc., in respect to al1 the Nakas on the Frontier,
will be given in detail, further on in this report.
5. The Umergaun Division consists of two lines also. First a slip of
Iand lying between the Damaun Ganga and Kalai rivers, commencing
from Rambayat Naka, and ending at Peeplee Naka, a distance of
about 24miles; and the Second line, extending from Amba-Varoo Naka
to Kalai-Par Naka, along the banks of Kalai river, a distance of about
36 miles. I propose manning those two lines, the former the "Mohun",
and the latter the "Kalai" lines. Five Nakas have been established in
the "Mohun", and seven in the "Kalai" line; or a total of ra Nakas
over a distance of about 6miles-under the old arrangement there were
4 Nakas in the "hlohun", and 6 in the "Kalai" lines. Al1 these Nakaç
are also nearly equi-distant,and are so situated, as to guard the most
frequented routes of smugglers.
6. Besides the Nakas round the Frontier, above mentioned, 1 have
considered it necessary to rnaintain3 Posts, with one peon each, about
the village of Kunta, where the Sirkarcoon's Cutcherry is situated. The
first postSurruk, is on the high road, a little distance froin the office.
The duty of the peon there is to examine Carts, laden and empty,
passengers, etc., proceeding to and from Damaun; the Second, Rijnee,
commands the back way into and out of Damaun, where the peon has
similar duties to perform, as the one stationed at theSurruk post: and
the third,Nandwa, is below the village, in a position almost between
the other two, and serves the same purpose as they do. These posts,
being close to the Cutcherry, 1 propose placing them in charge of the
'Sirkarcoon, as the dutieç of the Sepoys will be more in the examining
and searching, than in the Preventive line.
7. From what has been stated above itwill be seen that, the Damaun
Frontier consists of two Divisions, viz. the Bagwara and Umergaun,
with two lines in each, the former being nearly 13 miles, and the latter
about 6 miles in extent, or a little shortof 20 miles over the whole
Frontier, with a Cordon of 33 Nakas. I had the Frontier carefully
measured last January, from Naka to Naka, and went over the whole
ground myself, and although the above distances may be taken as pretty
correct, still, for patrolling purposes, the sweep of the frontier cannot,
1 think, be put down at less than 30 miles, The object of defining the
Divisions, lines, and extent of the Frontier, will be more apparent,
when I come to that part of rny report, where1 speak of the distribution
of the Preventive Force. ANNEXES TO COUNTER-MEMORIAL (D NO. 1) 163
8.Under the old arrangement, there were 9 open Nakas, including
.Kunta, for passing dutiable and free goods across the Frontier. These
are now reduced to five, three in the Bagwara Division, viz.,(1)Kolak;
(2) Chulla, and (3)Kunta: and two iii the Umergaun Division, viz.,(1)
Pathurpoonja, and (2)Kalai. At the Kolak and Kalai Nakas, the Customs
Carcoons receive duty on goods passing the Frontier, in addition to their
own work.
g.The sanctioned Prevei~tive Force consists of two European Inspec-
tors, three Jamadars,4 Hatrildars,7 Naiques, 44,1st CIass, 44, 2nd CIass,
and 44, 3rd Class Sepoys. The patrol party, and Cutcherry peons are
distinct. In disposing of tht: Forc1,liave arranged that there shall not
be Iess than four men at t:ach Naka: and the Havildars and Naiques
have been so placed, as to give each Umuldar charge of, from two to
three posts. The three Jamadars will each have charge ofabout 6miles
of the Frontier line,with control over the posts within such limits. The
Senior Inspector I have placed over the Bagwara, and the Junior
Inspector over the Umergaun Divisiori.
IO The names of the Nakas; and the disposition of the whole Pre-
ventive Force, have been made as follows. The names written in red
ink, are the new posts.
~aiwara Division
Senior Inspector
I Jamadar Northern line. . .
I Jamadar Eastern line.
No~éherL nine
I Kolak Par ............ 3 Peons and I Havildar
2 Kolak ............... 4 Peons
3 Kambeeo ............. 4 Peons
4 Sanklu Kante .......... 4 Peons
5 Patullea ............. 3 Peons and x Naique
6 Wuruakeea. ........... 4 Peons
l7 Dookee Doovan .......... 4 Peons
8 Rosa .............. 4 Peons
lg Bagwara Ferry .......... 3 Peons and I Naique.
9 Nakas, 33 Peons, 2 Nairlues,I Havildar, and I Jamadar. This line
runs along the banks of the Bagwara river, and is about 6 rniles in
length. These new Nakas have beeii established on it.
Eastern Line
10 Chadia ............. 4 Peons
1x Barra Khind .......... 4 Peons
12 Hatteeawar ........... 4 Peons and I Naique
13 Danyawar ............ 4 Peons
in red ink.1~4 ANNEXES TO COUKTER-MEMORIAL (D NO. 1)
1 14 Pullowree ............ 4 Peons
15 Chulla ............. 4 Peons and I Naique
16 Puddia ............. 4 Peons
17 Luckundeo ........... 4 Peons
18 Luckundeo Pal ......... 4 Peons and I Naique
119 Mussan Kinkee ......... 4 Peons
20 Nambda ............ 4 Peons and IHavildar
l21 GoIee Amboo .......... 4 Peons
12 Nakas, 48,peons, 3 Naiques; r Havildar and I Jamadar.
This line runs paralle1 with thB.B.C.I. Railway, and is nearl7 miles .
in extent.
Five new Nakas have been established in it.
The total number of Nakas in the Bagwara Division, as above shown,
is 21,manned by 81 Sepoys, 5 Naiques, 2 Havildars, and 2 Jamadars,
supervised by the Senior Inspector,
UmcrgaumDivision
Junior Inspector
I Jamadar.
Mohim Line
4 Peons and I Naique
zz Rarnbhayat ........... Two peons to act as
Cullassees, in charge of
of the boat there.
23 Jurree ............. 4 Peons
24 Kalee Amboo .......... 4 Peons
25 Pulsut ............. q Peons and IHavildar
126 Peeplee ............. 4 Peons.
5 Nakas, zo peons, I Naique and rHavildar.
This line, about z$ miles in length, lies between the Damaun Ganga
and Kalai rivers. One new Naka fias been established on it.
Kalai Line
27 Amleebaroo ........... 4 Peons
28 Pathurpoonja .......... 4 Peons and I Naique
29 Kurrurnlee ........... 4 Peons
30 Kadavya ............ 4 Peons
31 Makurya ............ 4 Peons
32 Kalai .............. 4 Peons and I Havildar
33 Kalai Par ............ 4 Peons
7 Nakas, 28 Peons, I Naique, IHavildar, and I Jamadar.
This line runs along the bank of the Kalai river, and is about 39
miles in length, Ithas one new Naka.
1 Inredink.166 ANNEXES TO COUNTER-MEMORIAL (D NO. 1)
be obtained, as they are on either Pwthzsl or pasturàge lands. 1 have
written to the CoIlector of Surat, and have asked him to allow me to
take them up, pointing out their localities, and size of each, viz., 60 by
50 feet.
In regard to tic selection and appointment of the Sepoys, I have
been most careful. 1 have had every man of the old Frontier and Cut-
cherry Establishments up before me, and have personaily taken down a
statement of each separately, noting his name, caste, place of residence,
age, pay, rank and character, with my own remarks, and decision in,
each case. In grading the Sepoys, 1 have given the preference to those
who have done the best service in making seizures of men and Salt,
and who, from their build and physique, are noted as good runners, and
pluckyin seizing Smugglers. Ihave entireIy set aside the daim of senio-
rity, as were such a principle to be followed, we should continue to be
burdened with a body of inferior men in the best paid grades. A number
of new men have been taken on, mostly Omeidwars,who have been
working on the Frontier with our Sepoys, in hope of getting rewards,
and ultimate employment. Most of them have made seizures, and having
a knowledge of the Frontier, 1 have selected them in preference to utter
strangers. 1 make appointrnents, after seeing each candidate. There
has been no lack of them, chiefly from the Concan, but very few of these
have been taken on, as they were chiefly raw youths, fresh from their
villages, and possesçing neither experience nor starnina. Men with local
interests and associations have been avoided. As it is of importance
that al1 the appointrnents should be filIed up as speedily as possible, 1
have entertained a number of men in the 2nd Class (the 3rd Class being
filIed) but on 3rd Class pay, telling them that their promotion will
depend entirely on their good conduct and activity in making Seizures.
Al1appointmentsin the force, 1have made probationary forthe present.
In appointing men ta the different Nakas, I have sent a mixture of
Castes to each, and thus there are Rajputs, Mahamedans, Mahrattas,
Purdassees, etc., associated together..
In the re-organisation, 1have found it necessary to dismissl men for
general incompetency or habitua1 drunkenness; and more men having
completed their time for Pension, have been directed to retire and apply.
for the same. Three Naiques have been reduced to 1st Class Sepoys, as
they are altogether unfit to hold such positions, being any thing but
active men, and unable to exercise any control over the Sepoys under
them.
As the Frontier Force is to be armed and drilled, 1 have written to
the Superintendents of Police at Surat and Broach, to letme have some
smart and inteIligent men (to take up the positions of Havildars and
1st Class Peons), whowillnot only be able to drill the Sepoys, but main-
tain discipline among them. 1 have been successful in obtaining the
services ofa Pensioned Subadar of H. M.zznd Regiment-N.I. to act
as a Jamadar; and also a few Military and Police Sepoys who Say
that they have not quite forgotten their drill. When I obtain the men
from the Police, the peons will be prepared to commence learning their
drill, I would therefore respectfully ask to be suppIied with the requisite
The numbers will be given. Ah7NEXES TO COUNTER-MEMORIAL (D NO. 1)
167
arms and accoutrements, at an early date, which 1 presume will be
obtained from the Commissary of ordinance at Bombay.
As regards the clothing of the Preventive Force, 1 think the style
should be the same as that adopted by the Military Police; but instead
of the blue or Indigo dye, 1would recommend the ordinaryshikar color,
which isreadily obtained from the Babool and Casselia bark. It is a
useiul one, and is rnost appropriate for Frontier work, both by clay and
night, as being less perceptible than blue. The three jamadars, will,1
presume be clothed, and armed like officers of the same rank in the
native army, with Waist belt, sidesling, and swords with steelscabbards.
In respect to the two Inspectors; Iwould solicit your instructions as
to the style of their uniforrns. They might perhaps be graded as 1st and
2nd Class Police Inspectors, and adopt a corresponding style of dress.
On receiving your instructions on this subject, 1 shall adopt measures
to clothe the .Force accordingly. The sum of Rs. 962-8-0 has been
sanctioned for this purpose.
In respect to the duties of the two newly appointed Inspectors, 1
have pointed out to them in writing, that while exercising great vigi-
lance, and an energetic control over their men, it is their s~eciadzttyto
suppress srnuggling across the Frontier, and that they are expected to
take an active part in seizirlg contraband Salt and smugglers.1 have aIso
alço informed them, that Smuggling is not restricted to any tirne or
place, and that they should therefore be careful in seeirig that rill their
posts are maintained in a state of emciency both by day and night; but
that as a rule, srnuggling is chiefly carried on at night, especially the
dark ones; and that at such times, tliey should so arrange their plans,
as to intercept and seize Smugglers; and this 1 have told thein, can
only be done effectually by their preçence among their men at such
places, ïvhere there is reason to believe, Smugglers wiii attempt to make
a run across the Frontier.
1 have also informed them that, it is no difficult matter to obtain
information as to the number of Smugglers who corne into Damaun for
Salt, and a clue to their intended movements; and with a view to obtain
such information, 1 have directed th(: rnspectors to send sorne of their
reliable men in disguise or undress to the Portuguese Salt works, Toddy
shops, and other places, where smugglers are known to collect, before
rnaking a run across the Frontier, and bring to Khubar; and that with
such information in their possessiori they çhould always be able to
check-mate the Srnugglers, and seize thern.
All seizures of Salt and Smugglers made in the Bagwara Division, are
taken to the SirKarcoon ;it Kunta, who takes down the depositions of
the Captors, etc., weighs the Salt, takes charge of, and ultimately
disposes of the same, prepares the case in due form for submission to the
Asstt. Collecter, and when there are Smugglers, commits them for trial
to the Sub-Magistrate of Pardi. Seizures made in the Umergaum Di-
vision are similarly treated by the Mookeya Karcoon of Pathurpoonja
Naka,where the Salt is sorted until sold. As the Inspectors have each a
Karcoon allowed them, 1 think the work of preparing cases should be
entrusted to them, after they have gained some experience in Frontier
work. But while malring this suggestion, 1 must state that, 1 am fully
alive to the undesirability of burdening Executive Officers with clerical
work; who probably being out aii nigfit after the Smugglers,find the day
barely sufficient for repose and refreshment.168 ANNEXES TO COUNTER-MEMORIAL (D NO. 2)
The planting of a hedge of Bheir trees round the Frontier was tried
iast monsoons, and proved an entire failure. A quantity of seed was
supplied to the Inspector, with instructions to plant them round the
Chowkies, very few of them came up, although they were carefully
tended and watered. The soi1 does not seem adapted tu them. A thick
Cactus hedge could, I think, be established round the Frontier; but 1
doubt whether it would be of much use, as it is so easily cut down, that
a passage through it could be made in a few minutes by Smugglers.
As already stated, the arrangements pointed out in this Report, were
introduced on the 1st Instant. A great deal,however, still remains tobe
done, to carry out the details of the neu7scheme for re-organizing the
Frontier. It will therefore be necessary fore to remain here for some
time longer to see them al1completed, the more so, as there is an entire
change of Inspectors, SirKarcoon, and others, who are quite new to
their work, and who require to be initiated into their duties. The Senior
Inspector took charge on the 1st and the Junior Inspector on the
evening of the 10th Instant. The SirKarcoon has not yet joined.
As matters progress, furtherreports will be sent in, detailing the same.
Ihave the honor to be,
Sir,
Your most obedt Servant
(Signed) . ... . .
Assistant ~011ectorof SaltRev:
Annex D. No. 2
RULES AND ORDERS UNDER BOMBAY ACT XXIX OF 1857
Fixing routesfor thepassing ofgoods intooroutofthePortuguesefiossession
of Goaafid Daman
Notn. No. 7644, R.D., 26th Sept. 1892, B.G., 1Sg2, Pt. I, p. 983, as
amended by Notn. No. 839S, R.D., 25th Oct. 1892
In exercise of the power conferredby section 6 ofAct XXIX of 1857,
and in supersession of the Notifications mentioned in the margin, the
Governor in Council is pleased to prescribe the undermentioned as the
only routes by which goods will be allowed topass into or out of the
Portuguese possession of Goa andDaman, respectivdy, namely:-
(1) Into or out of Goa:-
From or to the Ratnagiri and Belgaum Districts:-
I. By the Bandra Naka.
2. By the Dodamarg Naka.
From or to the Belgaum District :-
3. By the Kelghat. ANSEXES TO COUNTER-IIEMORIGL (D NO. 2) 169
From or to any part of British India by rail:-
4. By the Castle Rock Naka on the Southern Maratha
Railway .
From or to the Kailara District :-
5. By the Digi Ghat.
6.By the Mazali Naka.
(2)Into or out of Daman:-
From or to the Surat District :-
I.By the Kunta Naka.
2.By the Chala Naka.
3.By the Kolak Naka.
From or to the Thana District :-
4. By the Patharpunja Naka.
5. By the Kalaipar Naka.
Notn. No. 5136, R.D., 8th July 11Yg5B , .G.1895, Pt.I, p.763
In exercise of the powers conferredliysection 6 ofAct XXIX of 1857,
the Governor in Council is pleased ta direct thathe following additions
be made to the routes prescribed undt:r the saidsection by Notification
No. 7644, dated 26th Septeinber 1692, published in the Bombay Govern-
ment Gazette for 1892, Part 1,page 983, as the only routes by which
goods will be allowed to pass into or out of the Portuguese possession of
Goa, that is tosay :-
Into or out of Goa:-
11 From or to the Ratnagiri and Belgaum Districts:-
By the Kirnapani Xaka.
(2)From or to the Belgaum District :-
By the Chorla Naka.
(3)From or to the Kanara District :-
(a) By the Tinai Ghat (Anmod),
(b) By the Kundal Ghat (Kundal).
Notn. No. 6157, P.D., 15th Aug. 1900 B,.G., 1900, Pt. I,p.1756
In exercise of the powers conferredby section 6 ofAct XXIX of 1857,
His Excellency the Goverrior in Council is pleased to direct that the
following addition be made to the i:outes prescribed under the said
section by Notifications Nos. 7644 and 5136, dated respectively the
26th September 1892 and 8th July 1895, published in the Bombay
Government Gazette, Part 1,of 1892, and 1895, page 983 and pages 763
and 764, as the only router by which goods will be allowed to pass into
or out of the Portuguese prissession of Goa, that is to Say:-
Into or out of Goa:-
From or to the Savantvadi State and Ratnagiri and Bdgaum
Districts :-
By the Satarda Naka.I7O ANNEXES TO COUNTER-MEMORIAL (D NO. 3)
Prescribingadditionalroutefor passinggoods by landinto orout ofDaman
from ov foSurat District
Notn. No. 8572, R.D., 11th Sept. 1911,B.G., 19x1, Pt. I,p. 1650
In exercise of the power conferred by sectio6 of Act XXIX of1857
and in modification of Government Notification in the Revenue Depart-
ment, No. 7644, dated the z6th September 1892, the Governor in Council
is pleased to prescribe the undermentioned as an additional route by
which goods will be allowed to pasby land into or out othe Portuguese
possession of Daman from or to the Surat District, name1y:-
By the Bagwada Naka (Near Chowkey No. 9 of the Daman
Frontier,Bagwada Beat) .
Annex D.No. 3
No. 1729
Fort William
Home Department.
The 24th November 1856.
Notification
It has been brought to the notice of the Government of India that
Magistrates and other authorities,Civil and Political, are in the habit of
ganting Passports, or Certificates and other documents in the nature
of Passports, to persons travelling or intending to travel from one part
of India to another.
This practice being quite unnecessary and liable to much abuse, is
hereby strictly prohibited. Wereafter no Passports or documents of any
kind will be granted to any persons travelling or intending to travein
India either in the territories subject to the Government of the East
India Company or in Native States.
Perçons intending to travel from India to foreign Countries can as
heretofore obtain Passports on application to Government in the proper
Department.
By order of theRight
Hon'ble the Governor General of
India in Council
(Signed) Cecil BEADON
Secretary to the Govt. of India.
Ordered that a copy of this letter and of the notification referred to,
be forwarded tothe Foreign Department for such further orders as may
be neces~ar~~.
True Extract
(Signed) Cecil BEADON.
Secretary to the Govt. of India. ANNEXES TO COUNTER-MEMOREAL (D NO. 4) I7I
Annex D. No.4
ACT. No. XXXIII OF 1857
PASSED BY THE LEGISLATIV CEOUNCI LF INDIA
(Received the assent of the GovernorGeneral on the 5th December 1857.)
ANACTto make further provision relating to Foreigners.
WHEREA itSis expedient to make fusther provision to enable thesevPreamble.
Governments of the British Territones in India to prevent the subjects
of Foreign States from residing or sojourning therein or from passing
through or travelling in the same without the consent of tsaid ('vern-
ments: It is enacted asfollows: -
1. Every Foreigner shall, on his arrival in any part of the TemtorieEven Forejgner
in the possession and under the government of the East India Company arrivalinis
from any Port or place not within the said Territories, or from any PorIndia.
or place not subject to the provisions of this Act, forthwith report
himself to the Commissioner of Police, if he shall arrive at any of the
Presidency Towns : or, if hi: shall arrive at any other place, to the Magis-
trate or to such other Officer as shall be appointed to receive such
reports by the Governor General in Council, or (in places within their
respective jurisdictions) bthe Executive Government of any Presidency z,e$ be,ng r
or place, or by the Chief Commissionei-of the Punjab, the Chief Commis-the masteof a
sioner of Oude, or the CommissionersofMysore,Coorg,Nagpore, Scinde, z;gp;h",",in.
Pegu, and the Tenasserim and hlartaban Provincesrespectively.Provided
that nothing contained in this Section shall extend to any Foreigner
being the Master or Commander of a ship or vessel, or employed therein.
II. The report shalI be in writing; and shall be signed by the persoWhat tobe
reporting himself; and shall specify his name or names, the nation to iF2,d lhe.in
which he belongs, the place from which he shall have corne, the place
or places of his destination, the object of his pursuit, and the date of
his amval in the said Territories: and the report shall be recordecthe
Officer to whom it is made.
in aay part of the said Territories after he shall have ceased to ben ~~~~~fnembeins
employed in a ship or vesst:l,he shall forthwith report himselfin mannem~loyedthere-
aforesaid. in, to report
they ceatobeen
soemployed.
IV. If any Foreigner shall negiect to report himself as required by z$z;;;,o
this Act, he may be dealt with in the manner hereinafter provided in them-
respect of Foreigners travelling without a License.
like rnannastw
Foreigners
outa license.
V. No Foreigner shall travel in or pass through any part of the TerriNo Forekner
tories in the possession and under the gotrernrnent of the East India ~~~~~'$:h,"_
Company without a license. a Iicense.
VI. Licenses under this Act may tte granted by the Secretary to the whorn to be
Government of Zndia in the Foreign 1)epartment; or by the Chief Secre- g,,ted. 172 ANNEXES TO COUNTER-MEMORIAL (D NO. 4)
tary to the Governments of Fort St. George and Bombay respectively;
or by the Chief Commissioner of the Punjab, the Chief Cornmissioner
of Oude, or the Cornmissioners of Mysore, Coorg, Nagpore, Scinde,
Pegu, and the Tenasserim and Martaban Provinces respectively ; or by
such other Officers as shall be specially authorized so to do by the
Governor General of India in Council, or by the Executive Government
of any Presidency or place, or by any of the Chief Commissioners or
Commissioners aforesaid.
What to be VII. Every such license shall statethe name or names of the person
statedinlicensto whom the license is granted, the nation to which he belongs, the
district or districts through which he is authorized to pass, or the limits
within which he is authorized to travel, and the period (if any) during
which the license is intended to have effect.
Licensemau be VI~I, The Iicençe may be granted subject to çuch conditions (ifany)
to condrtionscas the Governor General in Council, or the Executive Government of
and may be any Presidency or place, or (as regards their several jurisdictions) any
revoked. of the said Chief Commissioners or Commissioners, rnay by any general
order direct; or as the Officer granting the license rnay deem necessary :
and the license may be revoked at any time by the Governor General
in Council, or bythe Executive Government of any Presidency or place,
or by the Officer granting the same.
travelling IX. If any Foreigner travel in or attempt to pass through any part
*thout or con-of the said Terntories without such license as aforesaid, or beyond the
traryto the districts or limits mentioned therein, or after such license shall have
iicensmay bef been revoked, or shall violate any of the conditions therein specified, he
am-ehended. rnay be apprehended without warrant by a Magistrate, Deputy hlagis-
trate, or Assistant to a Magistrate, or by any European Commissioned
Officer in the Service of Her Majesty or of the East India Company, or
by a Member of a Volunteer Corps enrolled by authority of Government
whilst on duty, or by any Police Officer.
agprehension. X. If anp person be apprehended by a person not being a Magistrate
or a Police Officer, he shall be delivered over as soon as possible to a
Police Officer, and carried before a Magistrate; and whenever any person
shall be apprehended by or taken before a Magistrate, such Magistrate
shallforthwith report the case to the Government to which he is subject,
and shall cause the person brought before him to be discharged, or to
Masistrate to be conveyed to one of the Presidency Towns, or to be detained pending
Government. the orders of such Government.
i'ersons aripre- XI. Al1perçons apprehended or detained under the above-mentioned
~~~~.~b$, provisions of this Act, rnay be adrnitted to bail by a Magistrate or by
any of the Officers authorized to grant licenses, and shall be put to as
little inconvenience as possible during their detention in custody.
Removal of XII. The Governor General in Council, or the Executive Government
Dersons ,of any Presidency or place, rnay order any such person to remove
apprehended.
hirnself from the said Territories by sea or by such other route as the
Government rnay direct; or the Government rnay cause hirn to be
removed from the said Temtorieç by such route and in such manner as
to the Government shall seem fit. ANNEXES TO COUNTER-MEMORIAL (n NO. 4)
173
XLLI. The Governor General in Council, or the Executive Government Governent
of any Presidency or place, or any of the Chief Cornmissioners or Commzi,Pt~y
sioners mentioned in SectionVI of this Act, may by writing order any ,,,, b,if.
Foreigner within his jurisdictioto remove himself from the Tel~itones
in the possession and under the goveaiment of the East India Company,
or to remove himself therefrom by a particular route to be specifiein
the order.
XIV. If any Foreigner ordered to rernove himself from the said Foreigner
Territories, or ordered to remove himself therefrom by any particular gF:$A;
route, shall neglect or refusf:do ;or if any Foreigner, having removedreturningwith-
himself from the said Territories in consequence of an order issued out license after
under any of the provisioris of this Act, or having been removed from beaDp@ende.
the said Territories undei any of the said provisions, shall wilfullyand detalaed-
return to the said Territories without a license inwriting gra~itedby
the Govemor General of India in Council or by the Government of
Officer under whose order he shall have removed himself or been removed
such Foreigner may be apprehended and detained in safe custody, until
he shall be discharged therefrom by order of the Governor General in
Council, or of the Executive Government, or of one of the said Chief
Commissioners or Commissioners meritioned in Section VI ofthis Act,
within whose jurisdiction he shall be so apprehended or detained, upon
such terms and conditions as the said Governor General in (zouncil,
Executive Government, Chief Cominissioner, or Commissioner shall
deem sufficient for the peace and st:curity of the British Territories, .
and of the allies of Her Majesty andof the East India Company, and of
the neighbouring Princes and States.
XV. The Governor General in Council, or the Executive Government Governrnqnt.
of any Presidency or place, oany of tlie Chief CommissionerorCommis- mmrsons notit
sioners mentioned in Section VI of this Act, may by order prohibit beingigurai-
ariy person or persons, or any class or classes of persons, not being :$: ;${$$g
natural-born subject or siibjects of Her Majesty within the meaning or Dasslns
of Section LXXXI, g and 4 Wiiliani IV, c.85, from travelling in or%? o:,
passing through any part of the saidTerritones, or from passing from withoutalicense,
any part of India to another, without a license to be granted by such
Officer or Officers as shall be specified in the order; and if such person
shall wilfully disobey such order, ]le may be apprehended without
warrant by any of the OfF~cersspecified in SectionfX of this Act, and
carried before a Riagistrate and dealt with under the provisions of
Section X, in the same manner as ihe were a Foreigner; and the Govern-
surveillance ofthePolice, solong as it:may be deemed necessary for thehe
peace and seci~rity of the British Teriitories.
XVI. It shall be lawful for the Commissioner of Police, or for a PoliceOfficer
Magistrate,or his Assistant, or for any Officerappointed to receive re~~x~~~~
as mentioned in the first section of this Act, or for any Police Officascertain
under the authority of such Commissioner or Magistrate, to enter any ~t:$& ~re~
ship orvesse1in any Port or place witliin the Territorinthe possessionon board.
and under the control of the East India Company, in order to ascertain
whether any Foreigner bound to report his arriva1 under Section 1 of
this Act, is on board of such ship or vt:ssel; and it shall be lawfui Forsuch
Commissioner of Police, or other Onicer as aforesaid, to adopt such
means as may be reasonably necessary for that purpose; and the Master I74 ANNEXES TO COUNTER-MEMORIAL (D NO. 4)
Masterpfv-I orCommander of such ship or vessel shall also, before any of the passen-
'ffassngers, gers are allowed to disernbark, if he çhall be required so to do by such
information Commissioner of Police, or other Officer as aforesaid, deIiver to him a
teSmtingthem. list, in writing, of the pasçengers on board, specifying the Ports or places
at which they embarked, andthe Ports or places of their disembarkation
or intended disembarkation, and answer, to the best of his knowledge,
al1 such questions touching the passengers on board the said ship or
vessel, or touching those wlio may have disembarked in any part of
India, as shall be put to him by the Commissioner of Police, or other
Officer as aforesaid. If any Foreigner on board such ship or vessel in
Foreigner any part of India shall refuse to give an account of his objects of pursuit
refuaccount in India, or if his account thereof shall not be satisfactory, the Officer
of hlmselnet may refuse to allow him to disembark, or he rnay be dealt with in the
to be allowedsame manner as a Foreigner travelling in India without a license.
to disembark,
Obstructing XVII. Whoever intentionally obstructs any Officer in the exercise
Oficers. of any of the powers vested in him by this Act, shall, upon conviction
before a Magistrate, be liable to a fine not exceeding one thousand
Rupees, or to imprisonment for any term not exceeding six months,
or to both.
Neelect by XVIII. If the Master or Commander of any ship or vesse1 shall wiI-
"'c&~p fullyineglect or refuse to cornply with the requisitions of this Act, he
resuisitions oshall, on conviction before a Magistrate, be liable to a fine not exceeding
AC^. two thousand Rupees.
Penaltyfor faise XIX. JVhoever shalI wilfully give a false answer to any question which
answerOrrepOrtb.y this Act he is bound to answer, or shall make anÿ false report, shall,
upon conviction before a Magistrate, be liable to imprisonment for a
period not exceeding two years, and shall be liable to a fine not exceeding
one thousand Rupees.
Intemretation XX. The word "Foreigner" in this Act shall be deemed to mean a
of "Foreigner"person not being either a natural born subject of Her Majesty within
the meaning of Section LXXXI, 3 and 4 William IV, c.85, or a native
of a place in the possession and under the Govemment of the East India
Company. The word "Magistrate" shall include every person exercising
"Maistrate" the full powers of a Magistrate, and a Justice of the Peace.
Proof of being XXI. If a question shall arise whether any person alleged to be a
a Foreigner. Foreigner and to be subject to the provisions of this Act is a Foreigner
or not, or is or is not subject to the provisions of this Act, the onus of
proving that such person is not a Foreigner or is not subject to the pro-
visions of thisAct, shall lie upon such person.
DurationofAct. XXII. This Act shall continue in force for two years; and it shall not
~&$'f~den extend to the Settlernent of Prince of Wales' Island, Singapore, and
or the StraitsMalacca, or to the Territory of Aden, unless the same shall be especially
~~~~~~~t declared applicable to such Settlement or Territory by the Governor
declared. General of India in Council.
Exce~tions and XXIII. The foregoing provisions of this Act shall not extend to
any Foreign Minister duly accredited by his Government, nor to any
Consul or Vice-Consul, nor to any person under the age of fourteen
years, not to any person in the service of the British Government.
The Governor General in Council, or (as regards their respective juris-
dictions) the Executive Govemment of any Presidency or place, or any AKNEXES TO COUNTER-MEMORIAL (D NO. 5) I75
of the Chief Commissioners or Commissioners mentioned in Section VI
of this Act, may exempt any persori, or any class of persons, either
wholly or partially, or temporarily or otherwise, from al1or any ofthe
provisions of this Act; and may at ariy time revoke any exemption.
XXIV. Any Officer of Government or other person who, prior to the Indemnity.
passing of this Act, may have done amy thing which would have been
justified by this Act if it had been in force at the time, is hereby indem-
nified for sodoing; andno action or otl-rerproceeding shall be commenced
or prosecuted in respect of any thing so done.
Annex D. No. 5
ACT No. III OF 1864.
(Received the assent of the Governor-GeneraI on the rzth February
1864.)
AN ACTto give the Govemment certain powers with respect to Foreigners
WHEKEA t is expedient to malie provisionto enable the Governrnent Preamble.
to prevent the subjects of :Foreign States from residing or sojouining in
British India, or from passing through or travelling therein without the
consent of the Government ; It is enacted as fo1lows:-
The following words and expressions in this Act shall have the Inter~retatian.
meanings hereby assigned to them, unless there be sornething in the
subjector context repugnant to such constrilction, that to Say:-
1. The words "British India," shall denote the Territories which areor "British India".
may become vested in Her hlajesty by the Statute 21 and 22 Victoria,
Chap. 106, entitled "An Act for the better Government of India":
The words "Local Government", sliall denote the persons authorized "Local
to adrninister the Executive Governnient in any part of British India,
or the Chief Executive OAicer ofanjr part of British India under the
immediate administration of the Governor-General of India in Council,
when such Chief Executive Officershall, by an order of the Governor-
General of India in Council published in the Gazette of India, be author-
jzed to exercise the powers vested by this Act in a local Government :
The word "Foreigner" shall dentite a person, not being either a "Foreigner".
natural-barn subject of Her Majesty within the meaning of the Statute 3
and 4 William IV, LXXXV, Section 81,or a Native of British India:
The avards "the hlagistrate of the District", shall denote the Chief "Magistratof
Officer charged with the Executive administration of a District and the D1stnct"a
exercising the powers of a Magistrate, by whatever designation the Chief
Officer charged with the Executive administration is styled, or, in the
absence of such Officer from the Station at which his Court is usually
held, the Senior Officer at the Station exercising the powersof a Magis-
trate as defined in the Codt: of Criminal Procedure:
The word "Vesçel" shall include any thing made for the conveyance "Vessel".
by water of human beings or property: ANNEXES TO COUNTER-MEMORIAL (D KO. 5)
17~
Nurnber. Words importing the singular number shaIl include the plural number
and words importing the plural number shall include the singular
number :
Words importing the masculine gender shali include females.
Gender.
proorof being II. If a question shall arise whether any person alleged to be a For-
a Foreisner. eigner and to be subject to the provisions of this Act iç a Foreigner or
not, or is or isnot subject to the provisions of this Act, the onus of
proving that such person is not a Foreigner, or is not subject to the
provisions of this Act, shall lie upon such person.
Government III. The Governor-General of India in Council may, by writing, order
Foreignerto any Foreigner to remove himself from British India, or to remove
remove hlmselfhimself therefrom by a particular route to be specified in the orderand
any local Government may, by writing, make the like order with reference
toany Foreigner within the jurisdiction of such Government.
Foreigner IV. If any Foreigner ordered to remove himself from British India,
~Eé" t> or ordered to remove himself therefrom by a particular route, shall
returr;ingwithneglect or refuse so to do; or if any Foreigner, having removed himself
removal. maytefrom British India in consequence of an order issued under any of the
be apprehendedprovisions of this Act, or having been removed from British India under
detaid. any of the said provisions, shall wilfully return thereto without a Iicense
in writing granted by the Governor-General of India in Council or by
the local Government under whose order he shall have removed himself
or been removed, such Foreigner may be apprehended and detained in
safe custody, until he shall be discharged therefrom by order of the
Governor-General of India in Council, or of the local Government
within whose jurisdiction he shall be so apprehended or detained, upon
such terms and conditions as the said Governor-General of India in
Council or local Government shall deem sufficient for the peace and
security of British India, and of the Allies of Her Majesty, and of the
neighbouring Princes and States.
Governor- V. Whenever the Governor-General of India in Council shall consider
,ûd",Fal;"xe it necessary to take further precautions in respect of Foreigners residing
this Act bef or travelling in British India or any part thereof, it shall be lawful for
in force in the Governor-General of India in Council, by a Notification published
BritishIndia. in the Gazette of India, to order that the provisions of this and the
trleoafn.y parsubsequent Sections of this Act shall be in force in British India, or in
such part thereof as shall be specified in such Notification, for such period
as shall be therein decIared; and thereupon, and for such period, the
whole of this Act including this and the subsequent Sections shall have
full force and effect in British India or such part thereof as shail have
been so specified. The Governor-General of india in Council may from
time to time, by a Notification published as aforesaid, cancel or alter
any former Notification which may still be in force, or may extend the
period decIared therein. Provided that none of the provisions of this
or the subçequent Sections of this Act shall extend to any Foreign
Proviso. Minister duly accredited by his Government; to any Consul or Vice
Consul; to any person under the age of fourteen years; or to any
person in the service of Wer Majesty.
VI. Every Foreigner on arriving inany part of British India in which
al1 the provisions of this Act are for the time being in force under an
order issued as provided in the last preceding Section, from any port ANNEXES TO COUXTER-JlEMORIAL (D 11'0. 5) I77
or place not within .British India, 01:from any port or place within Everv
British India where al1the provisinns of this Act are not in force, shall E${&'O
ifhe arrive at a Preçidency Town forthwith report himself to the Corn- arrivaiiIndiit
missioner of Police,of such Town, or, if he arrive at any otlier place then in ce'tain
he shall forthwith report himself to the Magistrate of the District, or to
such other Oficer as shall be appointed to receive such reports, by the
Governor-General of India in Council or by the local Government of
such piacc.
VII. The report sliall be in writing, and sliall be signed by the person What to be
reporting himseIf, and shall specify his name or names, the Nation to rsteaptoerdt.in the
which he belongs, the place from which he shaii have come, the place or
places of his destination, the object of his pursuit, and the date of his
arriva1 in such Presidency Town or other place. The report shall be
recorded by the Officer to whom itis made.
VIII. The provisions of the last two preceding Sections sliall not Ei;p;;iterS
extend to any person being the Master or Commander of a vi:ssel or ves,el,,,
empIoyed therein, but if any such person shall be in any part of British thereinto
India in which ali the provisions ofthis Act are for the time being in reportihem-
force, after he shall have ceased to be actually ernployed in a vessel, he selves when
shall forthwith report himself in manner aforesaid. so employd.to be
IX. If any Foreigner shall neglect to report himself as required by neslecting to
this Act, he rnay be dealt with in the manner hereinafter provided in reIiorithem-
respect of Foreigners travelling without a license. dealt witine
likernanneras
Foreigneer
withoutalicense.
X. No Foreigner shaI1 tsavel in or pass through any part of British No Foreigner
India in which a11the provisions of this Act are for the time being in ~~~i~$it~out
force without a license. a Iicense.
XI. Licenses under this Act rnay be granted by the Governor-General License b~
of India in Council or by any of the local Governments, under the signa- grhated. be
ture of a Secretary to the Crovernment:of India or to such local CrOVCïn-
ment as the case rnay be, or by such other Oficers as shall be specially
authorized to grant licenses by the Governor-General of India in Council,
or by any of the local Govt:rnrnentç.
XII. Every such license shall state the name of the person to whom What to be
the licençe is granted, the Nation to which he belongç, the District or "te.'"
Districts through which he is authorized to pass or the limits within
which he is authorized to travel, and the period (if any) during which
the Iicense is intended to have effect.
XIII. The license may le granted subject ta such conditions as the License may be
Governor-General of India in Council or the local Government rnay ,~a~o",~;~~~~~"'
direct, or as the Officer granting the license rnay deem necessary. Any and mau be
license may be revoked at any time by the Governor-General of India
in Council, or by the local Government of any part of British India in
which al1the provisions of this Act are for the time being in force and in
which the Foreigner holdirig the same rnay be, or by the Officer who
granted the Iicense.
=3 17~ ANNEXES 70 COUNTER-MEMORIAL (D NO. 5)
Foreigner XIV. If any Foreigner travel in or attempt to pass through any part
out orcontraryf British India without such license as aforesaid, or beyond the Districts
toth? or limits mentioned therein, or after such license shallhave been revoked,
License.rnayber shall violate any of the conditions therein specifiehe rnay be appre-
ap~rehended. hended without warrant by any Officer exercising any of the powers of
a Magistrate, or by any European Cornmissioned Officer in the service
of Her Majesty, or by any member of a Volunteer Corps enrolled by
authority of Government whilst on diity, or by any Police Officer.
Procedureupon XV. If any person be apprehended by a person not exercising any of
a~~rehension. the powers of a Magistrate and not being a Police Officer, he shall be
delivered over as soon as possible to a Police Officer, and forthwith
carried before the Magistrate of the District. Whenever any person
shall be apprehended by or taken before the Magistrate of the District,
Maeis,ratto such ;Ifagistrate shall immediatelyreport the case tu the local Govern-
reportto ment to which he is subordinate, and shall cause the person brought
before hirn tobe discharged, or to be conveyed to one of the Presidency
Towns, or pending the orders of such Government to be detained.
Persons XVI. Any person apprehended or detained under the provisions of
mpaabeended this Act, may be admitted to bail by the Magistraie of the District, or
admtted to by any Officer authorized to grant licenses, and shall be put to as little
bail. inconvenience as possible during his detention in custody.
mrsonsI of XVII, The local Government of any part of British India in which
ariprehended. al1the provisions of this Act are for the time being in force, rnay order
any person apprehended or detained under the provisions of this Act to
remove himself from any such part of British India, by sea or by such
other route as the said local Government rnay direct; or the said local
Government may cause him to be removed from such part of British
India by such route and in such manner as to such local Government
shall seem fit. The Governor-General of India in Council rnay exercise
al1the powers given by this Section to any local Government.
Governor-
Generalrnay XVIII. The Governor-General of India in Council may hy order
prohib,~riersoprohibit any person or any class of persons not being natural-born
natural-barn sub~ects of Her Majesty within the meaning of the Statute 3 and4
from William IV, chap. LXXXV, Section 81,from travelling in or passing
travellingor through any part of British India in which al1the provisions of this Act
~~y"'~&~ hn~ fforghhe time being be in force, and from passing from any part
India without thereof to another without a license to be granted by such Officer or
a license. Officers as shallbe specified in the order: and if any person so prohibited
shall wilfully disobey such order, he rnay be apprehended without war-
rant by any of the Officers specified in SectioXIV of this Act, and car-
ried before the Magistrate of the District, and dealt with under the
provisions of SectionXVlI in the same manner as if he were a Foreigner :
and the Governor-General of India in Council rnay order such person
to be detained in safe custody or under the surveillance of the Police so
long as it rnay be deemed necessary for the peace and security of British
India or any part thereof.
Also the local XlX. The local Government of any Preçidency or place in which al1
f n the provisions of this Act may for the time being be in force, rnay by
respective order prohibit any person or any class of persons not being natural-born
jurisdictions.çubjects of Ber Majesty within the meaning of the Statute 3 and 4
UTilliarn IV, chap, LXXXV, Section 81, from travelling in or passing ANNEXES TO COWNTER-MEMORIAL (D NO. 5) I79
through such Presidency or place or a.ny part thereof,and from passing
from any part thereof to anothcr, without a license to be grarited by
such Officer or Officeas shall be specifiedin the order; andany person
so prohibited shall wilfuly disobey such order, he rnay be apprehended
without warrant by any of the Officers specified in Section XTV of this
Act, and carried before the Magistrate of the District, and dealt with
under the provisions of Section XVII in the same manner as if he were
a Foreigner; and the local Governrnent may order such person to be
detained in safe custody or under the surveillance of the Police so long
asit rnay be deemed necessary for the peace and security of British India
or any part thereof.
XX. It shall be lawful for the Ccimmissioner of Police, or for the C&&~O,~cers
Magistrate of the District, or for any Oflicer appointed to receive repoves,eto aster-
as mentioned in the sixth Section of thiç Act, or for any Police Officertain whether
under the authority of such Commissioner or hlagiçtrate, to enter any ooresnd. are
vessel in any port or place within British India in which aUthe provisions
of this Act rnay for the time being be in force, in order to ascertain
whether any Foreigner bound to report his arriva1 under the said Section
VI of thiç Act is on boardof such vesse1;and it shall be lawful for such
Commissioner of Police, Magistrate, or other Officer as aforesaid, to
adopt such means as rnay be reasonably necessary for that purpose;
and the Master or Commander of such vessel shall also, before any ofMasterof
the passengers are allowed to disembarl;, if he shall be required so to do ,,ru,
by such Commissioner of Police, Magistrate, or other Officer as afr~resnishIistof
deliver to himaliçt in writing of the paççengers on board, specifying the
ports or places at which tht:y embarked, and the ports or places of thetion respectins
disernbarkation or intended disembarkation, and answer to the best of
his knowledge al1 such questions touching the passeiigers on board
the said vessel, or touching those who may have disernbarked in anypart
of British India, as shall be put to hjm by the Commissioner of Police,
Magistrate, or other Officer as aforesaid. If any Foreigner on board sucForeigner
vesse1in any part of British India shall refuse to give an account of hi~2% 2 ""
objects of piirsuit in India, or if his account thereof shaD not be satis:~~~,i;;&
tory, the Officer rnay refuse to allow him to disembark, or he rnay be disembark.
dealt with in the same manner as a Foreigner travelling in BritishIndia
without a license.
XXI. ifthe Master or Commander of a vessel sliall wilfulgive a %!;1&$,
false answer to any question which by Section XX of this Act he is., ,port.
bouiid to answer, or shall make any false report, he shalbeheld to have
committed the offence specjfied in Section177 of the Indian Penal Code.
XXII. If the Mastcr or Commander of any vessel shall wilfully :,";%Zr
neglect or refuse to comply with the requisitions of thiç Act, he shall,Master of
on conviction before the Magistrate of the District or a Justice of the~$l&~~s~~l~
Peace, be liable to a fine not cxceeding two thousand Rupees. tionsof AC^.
XXIII. Whoever intentionally obstmcts any Officer in the exercise Zt",zt$;
of any of the powers vested in him by this Act, shall be held to have offi,,.
committed the offence spccified in Section186 of the Tndian Pena.1Code.
XXIV. Al1fines imposed under thi~ Act may, accordhg as theÿ çhall ,"Z ierr
have been imposed for offences comrriitted within or for offences com- ~,tho, t, b,
mitted beyond the lirnits of the Towns of Calcutta, Madrasand Bombay, recovered.
be recovered by a Maestrate of Polici: or by the Magistrate of the Dis- trict in the manner prescribed in Section XXVI of Act XLVIII of1860
(to amend Act XIII of 1856 for regulating the Police ofthe Towns of
Calcutta, Madras, and Bombay, and the several Stations of the Settle-
ment of Prince of ifTalestIsland, Singapore, and Malacca).
Persansmay be XXV. The Governor-General of India in Council, or the local Gov-
provisionofomernment of any part of British India in which this Act may for the time
this~ct. being be in force, may exempt any person, or any class of persons,
either wholly or partiaIly, or temporarily or otherwise, from al1 or any
of the provisoins of thiAct contained in any of the Sections subsequent
to Section V, and may at any time revoke any such exemption.
Annex D. No.6
Part I The GazetteofTndi'a,Aupst 15, 1914. 1329.
Notifications.
Simla, the 8th August, 1914,
No. ~~~.-WHEREAS the Governor-General in Council considers
it necessary totake further precautions in respect of foreigners residing
in or travellingin British India.
Now therefore, in exercise of the powers conferred by section5 of the
Foreigners Act, 1864 (III of 1864)~the Govemor General in Council is
pleased to order that the provisions of section 5 and of al1the subse-
quent sections of the said Act shall, for a period of six months from the
date of this notification, bein force in British India, including British
Baluchistan, the Sonthal Parganas and the District of Angul.
No. 578-111 exercise of the powers conferred by section 25 of the
Foreigners Act, 1864 (III of 1864) the Govemor General in Council is
pleased to exempt-
(a) from the provisions of section5 and al1the subsequent sections
of the said Act, al1 foreigners being Asiatics, and
(b) frorn the provisions of sectio10 to 19 of the said Act, al1non-
Asiatic foreignersnot being of German or Austrian nationality . 181
ASKEXES TO COUNTER-~IIE~IORIAL (D SO. 7)
Annex D.No. 7
Part 1. The Gazette ofIndia, Atgust 22, 1914. 135x7
LEGISLATIVD EEPARTMENT
Notifications
Simla, the 20th August, 1914.
-4n Ordinance to provide for the exercise of more effective control over
foreigners in British India.
Ordinance No. [II of 1914
WHEREAS an emergency has arisi:n which makes it necessary to
provide for the exercise of more effective control over foreigners in
British India ;
Now, therefore, in exercise of the powers conferred by section 23 of
the Indian Councils Act, 1861, the Governor General is pleased to make
and promulgate the following Ordinance.
I. (1)This Ordinance niay be called "The Foreigners Ordinance, :,"~,';~atitle
1914".
<.
(2)It extends to the whole of British India including British EIaluchi-
stan, the Sonthal Paraganas, the district of Angul, the Shan States and
the Pargana of Spiti.
2.In this Ordinance- Definitions.
(a) "foreigner" has the same n~eaning as in the Foreigners Act,
1864.
(b) "preçcribed" means prescsibed by rules made under this
Ordinance.
3. (1)The Governor General in Council may by order- Powerto
prohibitor
(a) prohibit, or regulate and reistrict in such manner ashe thinks resulate entw
fit, the entry of foreigners inO British India and their departure $$::" %d
from British India; and forejgners.
(b) regulate or restrict in such inanneras the thinks fit the liberty
of foreigners residing or being in British India.
(2) In particular and n~ithout prejudice to the generality of the
foregoing power orders under sub-section (1)may provide-
(a) that no foreigner shall enter into or depart from British India,
save within such periotl and by such route, orby such port or place
as may be specified in such order;
(b) that foreigners slinll be protiibited from entering or remaining
inany specified area in British11idiaor shall only be permitted to
enter or remain in British India01'any specified area therein subject
to such conditions and restrictions as the Governor General in
Council may impose; and
(c) that foreignersresiding or being inBritish India shallremove
themselves toand remain in any specified area, or if such an order
is necessary for the public safety, or in the interests of theState,
that such foreigners sliall be arri:sted and interned or conlined in
such manner as the Governor General in Council may think fit.
4. Any foreigner who contravenes or attempts to contravene the Penalties.
provisions of any order made under section 3, shall be punished with 182 ANNEXES TO COUNTER-MEMORIAL (D NO. 7)
imprisonment of either description for a term which rnay extend to
three years or with fineor with both.
Householder to 5. (1) The Governor General in Council or any Local Government
of anyresidencmay, by notification in the Gazette of India or the local official Gazette,
foreigner in has the case rnay be, direct that within any area specified in such notifica-
scoseed. rire-tion, every householder in whose house a foreigner is residing either
authorilin temporarily or peraanently shall forthwith report to the prescribed
smclfied authority in the prescribed manner, the name of such foreigner, and
such other particulars respecting him and the period of his residence in
such house as rnay be prescribed.
(2) Any householder who fails to comply with the provisions of any
notification issued under çub-section (1) skall be punished with impri-
sonment of either description for a term which rnay extend to sixmonths
or with fine which may extend to five hundred rupees or with both.
Orders under 6. Where under the provisions of this Ordinance the Governor General
~~d~~,"~, aniCo~yncil or any Local Government is authorised to make any order
s~ecial. or issue any notification in respect of foreigners, such order may be
made or such notification issued in respect of foreigners generally or in
respect of any class or description of foreigners, or in respect of any
individual foreigner, and different orders or notifications rnay be made
or issued in respect of different classes of foreigners.
Powerto make 7, (1) The Governor General in Council may make rules for the
rules. purpose of carrying into effect the provisions of this Ordinance:
In particular and without prejudice to the generaIity of the foregoing
power such rules rnay provide for-
(a) the authority to whom, and the manner in which, reports
under section 5 shall be made and the particulars to be stated
therein ; and
(b) the manner in which orders under this Ordinance shaI1 be
enforced.
(2) Al1 rules made under this section shall have effect as if enacted
in this Ordinance.
P0.r to 8.The Governor General in Council or the Local Government rnay
tesand or at any time rescind or modify any order, rule or notification made or
ordefy. Or issued under this Ordinance, and the Governor General in Council may
delegate, subject to such conditions and restrictions as he tliinks fit,al1
or any of his powers under this Ordinance to any civil or military autho-
rity in BritishIndia eitherby name or in iirtue of his oflice.
Saving of g. Nothing in this Ordinance shall be deemed to affect or derogate
from any power which may be exercised under the Foreigners Act, 1864,
or under any other law for the time being in force in respect of for-
eigners generally or in respect of foreigners who are subjects of a State
which is at war with His Majesty.
Powerof IO. The Governor General in Council may exempt, either absolutely
exernvtion. or conditionally, any foreigner or any class or description of foreigners
from al1 or any of the provisions of this Ordinance.
Bar.of iuris- II. No order made under section 3 of this Ordinance shall be caIled
Of
Courts. in question in any Court.
HARDINGE OF PENSHURST,
Viceroy and Governor General. ANNEXES TO COUNTER-MEMORIAL (D NO. 7)
1~3
Part 1 The Gazetteof India, March IO,1917. 392-
Delhi, the 5th March 1917.
No. 1429-D.-In pursuarice of section 2of the Defence of lndia (Cri-
mina1 Law Amendment) Act, 1915 (IV of 1915) t~e Governor General
in Council is pleased to rnalre the foliowing rules:-
I. These rules may be called the Defence of India (Passport) Rules, Short title.
1917.
2. In these sules, unless there is anything repugnant in the subject Definition.
or context,
"Passport" means a passport for the time being in force, issued or
renewed not more than two years previo~isly by or on behalf of the Gov-
ernrnent of the country of whieh the person to whom it relates is subject
and, in the case ofa person corning to lndia from any country other than
the United Ringdom or a British possession issued or visaed by the
British Ambassador or British Consul in that country, to which passport
there is attached a photogrilph of the person to.whom it relates.
"Competent authority" means any person authorised by order in
writing by the Governor General in Council or by the Local Government
to exercise the powers of a competent: authority under these rules.
3, No person coming from or intending to proceed to, any place out g.b$$;rin
of India shall, save as othenvise provided in these rules,Iand or embark BritishIndia
at any port inBritish India unless he or she has in his orher possession ;~~$~;$~~ort
a passport.
4. The Governor General in Council or the Local Government rnay ;;~~y;m~t
by order in writing exempt, either a~aolutely or on such conditions as the operation
rnay be specified in the ortier,any person or class of perçons from any of the rules.
of the provisions of these rules, and a competent authority may by like
order and under like conditions exempt any person or class of perçons
from any of the said provisions.
5. Any person who,
(a) lands or embarks at any port in British Tndiaincontravention
of rule 3;
(b) having been coilditionally exempted from any of the pro-
visions of these rules does any act. in contravention of any condition
specified in the order of exernptici;
(c} for the purpose of obtaining a passport or an order of exemp-
tion fromany provision of these rules, or for the purpose of obtaining
the renewal or variation of a passport or order, either for himself,
herself or for any other person, makes a false statement or false
representation, shall be punishable with imprisonment for a term
which may extend to six months, or with fine, or with both.
6. Any person who voluntarily obstructs, or offers any resistance to, Penalties.
or impedes, or otherwise iriterferes wj.tha competent authority, or any obstru~tioto
officer or other person who is carrying out the orders of such ailthority;;$;under
or who is otherwise acting in accordailce with his duty iinder any of the these rules. provisions of these rules, slialbe punishable with imprisonment for a
tem which may extend to one month, or with fine, or with both.
Atternms. 7.Xny person who attempts to commit, or abets or attempts to abet
the commission of, any act punishable under these rulesshall be punish-
able in like manner as ifhe or she had committed the act.
Powerof arrest.8. (1) A competent authority or any officer of the Police or of the
Customs Department empowered by general or special order by the
Local Governrnent in this behalf, may arrest without a warrant any
person against whorn a reasonable suspection exists of his or her being
concerned in an offence punishable under these rules.
(2) Every autliority or officer making an arrest under this rule shall,
without unnecessary delay, take or senà the person arrested before a
Magistrate having jurisdiction in the case, or to the officer in charge of
the nearest police station.
Exceptions. 9. Nothing in these rules shall apply to-
(a)any person whose age is,or appears to the competent author-
ity to be, less than fifteen years;
(b) any member of His hfajesty's naval or military forces or of
theIndian Marine Service entering or leaving British India on duty;
(c) any member of the crew of any vessel who has been lawfully
engaged as such in any country outside India and who leaves
British India in continuation of the same voyage in the same
vessel, oany member of the crew ofany vessel who has been Zaw-
fully engaged in British India for an oversea voyage who satisfies
a competent authority that he isby occupation a sea-faring man;
(d) any bona fide labourer proceeding to, or returning from, the
Malay States of Ceylon; and
(e) any bona fide Mahomedan pilgrirn proceeding to, or returning
irom, Jeddah or Basra.
Annex D. No. 8
THE INDIAN PASSPORT ACT, 1920.
ACT NO. XXXIV OF 1920.
(9th September, 1920).
lin Act to take power to require passports of persons entering British
India
WHEREAS it is expedient to take power to require passports of persons
entering British India; It is hereby enacted as fo1lows:-
I. (1) This Act may be called the Indian Passport Act, 1920.
(2) It shalI extend to the whole of British India, including British
Baluchistan, the Sonthal Parganas and the district of Angul.
2. In this Act, unless there is anything repugnarit in thesubject or
contest .- "entry" meaiis entry by water, land or air;
"passport" means a yassport for the time being in force issued
or renewed by the prescribed authorityand satisfying the conditions
prescribed relatirigto the class of passports to which it belongs; and
"prescribed" meanç prescribed by rules m2de under this Act.
3. (1) The Central Government may make rules recluiring that perçons
entering British India shall be in possession of passpor.s, and for al1
matters ancillary or incidental to that purpose.
.(z) Without prejiidice to the genecility of the foregoing power such
rules may-
(a) prohibit the entsp into British India or any part thereof of
any person who has ncit in his possession a passport issued to him;
Tb) prescribe the authorities by whom pa&portç must have been
issued or renewed, and the conditions with,which they must.~.mply,
for the purposes of this Act ;.and
(E) provide for the t:xemption, either abçolutely or on ariy con-'
dition, of any person or class oiperçons from any provjsjon of such
rules. . , '
(3) Rules mada under tliis section rnay provide that any contravention
thereof or of any order issur:d under the authority of any such rule shall
be pilnishable with imprisonment for a term which rnay extend to three
months, or with fine or witli both. . .
(4) Ali rules made under this section shall be published in the Officia1
Gazette and sliall thereiipon have effelst as if enacted in this Act..
4. (1) 14ny officer of police, not below the rank of a sub-inspecter,
ancl any officer of the Customs Department empowered by a generai or
special order of tlie Central Government in this behalf may arrest without
warrant .any person who has contravened or againçt whom a reasonable
suspicion exists .that he .has contravened 'any rule or orcler made under
section -.
(2) Every officer making an arrest under this section shall, without
unnecessary delay, take or send the pt:rson arrested before a hlagistrate
having jurisdiction in the case or to the officer in charge of the nearest
police-station and the provisions of section 61 of the Code of CriminaI
Procedure, 1398, shall, so far as may be, apply in the case of any such
arrest .
j. The Central Government may, by general or special order, direct
the removaI of any person from British India who, in contravention of
any rule made under section 3 prolhibiting entry into British India
without passport, has entered tlierein, and thereupon any officer of the
Crown shall Iiave al1reasonable powersnecessary to enforce such direction. GOVERNMENT OF INDIA
HOMEDEPARTMENT.
INDIAN PASSPORT RULES, 1921
NOTIF~CATIO NNO. 1384-G DATED, SIMLA ,HE 7TH SEPTEMBE 19,21,
WITH AMENDMENTS ISSUED UP TO AUGUST1 ,947,
In exercise of the powers conferred by section3 of the Indian Passport
Act, 1920 (XXXIV of rgzo), the Central Government is pleased to make
the following rules:-
I. These rules may be called the Indian Passport Rules, 1921.
2. In these rules, unleçs there is anything repugnant in the subject
of context; . ,.,. ,"competent Authority" means any persons autho-
rised by order in writing by the Central Government to exercise the
powers ofa competent Authority under these rules.
3. Subject to the provisions hereinafter contained no person proceed-
ing from any place outside India shall enter British India by sea or by
air or by land unless he is in.possessioof-a paçsport.
Explanation 1-A person entering British India by sea or by air
shall not be deemed to, be proceeding from a place outside India by
reason only of the fact that he has traversed extra-territoriawaters
in the course.of his journey.
Explanation II - A person shall be deerned to be proceeding from
a place outside India who having entered India from such place subse-
quently enters British India.
4.Every such passport -
(i) shall have been issued or renewed by or on behalf of the
country of which the perçon to whom it relates is a subject and
shall be within the period of its validity;
(ii) shall, except in the case ofpassport issued to Pardanashin
or Gosha women have affixed to ita photograph of the person to
whom itrelates, duly authenticated by the issuing authority;
(iii) when issued by or on behalf of His Majesty's Government
of any British possession shall be specifically valid for entry into any .
part of the British Empire or shall have been specifically endorsed
by a competent British authority as valid for entry into British
India ;
(iv) when issued by or on behalf of the Government of a foreip
country shall have been endorsed by way of visa for British India
by a proper British Diplornatic, Consular or Passport Authority.
Such visas shaIl be of one of the following kinds, namely: -
(a) a single journey visa valid for one year or for such shorter
period as may be specified therein for one journey only to British
India. for any legitimate purpose;
(b) a transit visa valid for one year, or for such shorter period
as may be specified therein (provided that in no case shall it be
valid for a period exceeding the ~ieriod for which the visa for the
country of ultimate destination is valid) for one or more direct jour- ANNEXES TO COUNTER-JIEMORIAL (D NO. 8) 187
neys through British India undertaken for the sole purpose of
reaching the territory of a foreign State or of another British
possession and occupying in eacli case not more than 15 tlays in
British India, iinless an extensioii of the time for such jouiney be
allowed by a competent authority, and
(c) an ordinary visa valid for one year or for such shorter period
as may be specified therein for any number of journeys to British
Tndia for any legitimate purpose.
5. (1) The following persons and classes of persons shall be exempted
from the provisions of rule 3: -
(a) persons whose age is in the opinion of the competent authority
lessthan rgyears;
(6) members of His Majesty's Naval, Military or Air Force or of
the Indiail Marine Service entering British India on duty, and
rnembers of the families of any such person when accornpanying
such yerson to British India on a Government transport;
(c) persons domiciled in India proceeding from any foreign
possession in India, or frorn CeyIon, or the Federated Malay States
the Straits Settlements or Burma;
(d) persons domiciled in india proceeding from the Dominion
of Pakistan;
(e) persons domiciled in the -1lominion of Pakistan proceeding
from Pakistan;
(f). persons domicili:d in Ceylon proceeding from Ceylon and
Brit~sh subjects domiciled in Bui-ma proceeding from Burnia ;
(g) persons domiciled in a foreign possession in India, proceeding
from any foreign possession in India;
(12 )ona fide Mahoinedan pilgrims returning from Jeddah or
Basra,
(i) Nepalese, Tibetiins, and Bhutanese entering British India
by land over the Nepal border;
(j) Tibetans, Bhutanese, and Nepalese entering British India
by land over the Tibetan border;
(k) persons domiciled in India entering British India by land
over the Nepalese, Tibetan and Indo-Burmese borders;
(1) persons or classes of persons specified in this behalf by the
Central Government.
(2) In specifying any person or class of persons in accordance
with the provisions of clause (1) of sub-rule(I),the Central ('overn-
ment may prescribe any conditions to which the exemption of
such person or class of persons from the provisions of rule 3 shall
be subject.
6, Any person who -
(a) enters British India in contravention of the provisions of
mle 3.
or
(6) does any act in contraverition of any condition prescribed
under sub-rule (2) of rule5, -INSEXES TO COUKTER-JIEUORIAL (D SO. 8)
IFS
shall be punishable with imprisonrnent for a terin whichmay extend
to three months or with fine or with both.
7. Any person who attempts to commit orabets or attempts to abet
the commission ofany offencepunishable under rul6 shall be punishable
in like manner as ifhe had committed the offence.
Denys BRAY,
Secretary to the Government of India. Annex D. No. g
Part I TheCazettt:of India, February 20, 1926. 285
FOREIGK AND POLITICAL DEPARTMENT
The 16th February 1926.
Ko. 77-G.-In exercise of the powers conferred by section 3 of the
Indian Passport Act, 1920 (XXXIV of rgzo), the Governor-Gerieral in
Council is pleased to amend Notification of the Foreign and I'oliticat
Department, No. 1384jC., dated the 7th September 1921 n the following
manner, namely :-
I. The Explanation to rule 3 shall be numbered Explanatiori 1 and
below it shall 11eadded the following .Explanation, name1y:-
"Explanation II. A person shall be deerned to enter British India
by sea who, having disembarked at aport in lndia or a port in any
foreign possession in India, subsequently enters British India."
2. For clause (d) in sub-rul(1) ofsule j the following clause shall be
substituted, narnely :-
"(d) Permanent residents in India or in a foreign possession in
India proceeding from a port in such foreign possession, and per-
manent residents in India or in Ceylon yroceeding from a port in
Ceylon."
Annex D. No. IO
FOREIGN AND POLITICAL DEPARTMENT
New Delhi, the 22nd January 1930.
No. 72-G.-In exercise of the powers conferred by section 3 of the
Indian Passport Act, rgzo (XXXIV of I~SO),the Governor-General in
Council is pleased to direct: that the following further amendment shall
be made in the Indian Pa~:jport Rule:, 1921, name1y:-
For sub-rule(1) ofmle 5 of the said Rüles the following sub-nile shall
be substituted, namely :-
"(1) The following persons and classes of persons shall be exempted
from the provisions of rule 3:-
(a) persons whose age isinthe opinion of the cornpetent authority
less thanrg years,
(b)members of His Majeçty's Kaval, Military or Air Forces or
of the Indian Marine Service entering British India on duty, and
members of the families of any such person wheii accompanying
such person to British lndia on a Government transport,
(c) persons domiciled in India proceeding from any foreign
possessionin India, or frorn Ceylon, or the Federated Malay States
or the Straits Settlements,=go ANNEXES TO COUNTER-TIIE3IORIAL (D NO. II)
(d)persons domiciled in Ceylon proceeding from Ceylon,
(e) persons domiciled ina foreign possession in India proceeding
from any foreign possession in India,
(f) bolau fide Mohamedan pilgrims returning from Jeddah or
Basra,
(g) persons or classes of persons specified in this behalfby the
Governor-General in Council 'orby a Local Government."
E. B. HOWELL,
Offg. Foreign Secy. to the Govt of India.
Notification
Simla, the 7th May, 1930.
No, 287-G.-In exercise of the powers conferred by section3 of the
Indian Passport Act, 1920 (XXXIV of 1920), the Governor-General in
Council is pleased todirect that the following further amendment shall
be made in the Indian Passport Rules, 1921, namely :-
In sub-rule (2)of rule 5 of the said Rules, for the brackets and letter
"(f)" the brackets and letter "(g)" shall be substituted.
E. B. HOWELL,
Offg.Foreign Secy. to the Govt. of
India.
(F & P DEPT. No. 167-G/~o.)
Annex D. No. XI
FOREIGN AND POLITICAL DEPARTMENT.
Notification
Simla, the 16th September 1935,
'JO. 514-G.-In exercise of the powers conferred by section 3 of the
Indian Passport Act, 1920 (XXXIV of ~gzo), the Governor General
in Council is pleased to direct that the foIlowing further amendments
shallbe made in the Indian Passport Rules, 1921, namely :-
I.In rule 3 ofthe said Rules-
(i) for the words "by the Chaman, Khyber or Nushki land route
the words "by land" shall be substituted; and
(ii) for Explanation II, the following Explanation shall be
substituted, nameIy :-
"Explanation 11.-A person ~hall be deemed to be proceeding
from a place outside India wl10 having entered India from such
place subsequently enters British India."
2.In sub-rule (1) of rule5of the said Rules-
(i) after clause) the followingclauses shall beinserted, name1y:-
"(g) Chinese nationals and inhabitants of French Indo-China
entering British India by land over the Sino-Burma border, ANNEXES TO COUNTER-MEYORIAL (D NO. 12)
IgX
"(h) Nepalese, Tibetans, and Bhutanese entering British India
by land over the Nepal border,
"(i) Tibetans, Bhutanese, and Nepalese entering British India
by land over the Tibetan Border,
"(i) Siamese entering British Iildia by land over the Siam border,
"(k) persons domiciled in India entering British India by land
over the Sino-Burmese, Nepalest:, Tibetan and Siarnese borders,";
and
"(ii) clause(g)shall be relettered (1).
J. G. ACHESON,
Offg. Foreign Secy. to the Govt.
of India.
[F & P DEPT. 30. 349-G (SECRET)-1934.)
Annex D. No. 12
A letter from His Brit:annic Majesty's Consul in the Portuguese
Possessions in India, No, zg/~zgdated the 5th Nov. '40, to the Under
Secretary to the Governmerlt of India in the Esternal Affairs Department,
New Delhi.
--
Subject :-Re: necessity of docunients of identity for Portuguese
Europeans residing in Goa to proceed to British India.
1 have the honour to invite your kind attention to my letter
No. zg/rzo, dated 1S/z3rd September last and to request you the favour
of an eady reply thereto.
A copy of tlie Local Government's letter No. 269/G, dated the 5th
September, calling for the information is enclosed herewith for. your
information.
Translation of letter No. z6g/Gdated 5-9-40, from the Chief of Cabinet,
Nova-Goa, to H.B.M. 'çconsul, Morniugao.
I request you to please enlighten rne on the fol1owing:-
"Do the Portuguesc Europeans residing iii Goa require any documents
to proceed to British India?"
The reason for the question is this. Some time back anA.D.C. toH.E.
the Governor went to spentl a month in British India. His 'Guia' (a kind
ofpassport) was sent to the Consulate for countersignature and you were
of the opinion that it was not necessary and really this Officer did not
meet with any difficulty diiring his stay and transit in British lndia.
Tt happens, however, that, recently another A.D.C. of H.E. having
gone to British India, did not meet with any difficulties on the part of AKNEXES TO COUXTER-h.IEB1OKIAt (D SO. 13)
Ig2
the frontier authorities, neither at Kolhapur where he was for some days,
but having stayed, on return journey, a night at Belgaum he \vasmet
by a police Officer who açked hirn for the 'travel permit' which he did
not possess, and, though, politely he informed him that only to the
Portuguese born in Goa, free transit was permitted in British India,
but he would consent to his departure, as he knew that he was leaving
by early morning train.
1 have to inform you that tliis officer had with him and showed
the officia1document justifying the work on which he had gone.
Thanking in anticipation for the information asked for, in order to
know the proceedure to be followed in similar cases, and to avoid dis-
agreeable situations.
A letter from the Under Secretary, External Affairs Deptt. No. B.
581(4)-Gj dat0d the 2nd December, 1940 to the H.B.M.'s Consul in
the Portuguese Possessions in India Marmagoa.
Subject :-Visas for India.
1am directed torefer to your letter Nozgj129, dated the 5th Novem-
ber, 1940 and to Say that European Portuguese subjects who are not
domiciled in the Portuguese Possessions in India, are not exempt from
the necessity of being in possession of Passports duly visaed for India,
when entering British India from these Possessions.
Annex D. No. 13
HOME DEPARTMENT
Notification
New Delhi, the zznd July 1944.
No. 8gl4r.A-Poll(E).-In exercise of the powerç conferred by sub-
rule(1)of rule25 of the Defence of India Rules, the Central Government
is pleased to order that no person, notbeing a foreigner shall proceed
by land from British India to any place in the Portuguese possession
of Goa except under the authority of a written permit issued by the
Commissiorter of Police, Bombay, or by the District Superintendent of
Police of the Belgaum, Ratnagiri, North Kanara, Surat or Thana districts
or by any other police officer subordinate to them and authorised by
the said officerin this behalf or byariyofficer of the Central Exercises
and Salt Revenue Department of the Government of India, or by a
forest officer of the Government of Bombay.
Provided that nothing in thisOrder shall apply to a person proceeding
by one or other of the following routes, namely-
(a) by railway ;
(b) by the road from Anmode to hlollem;
(c) by the road from Dodamarg to Asnora;
(d)by the road from Majali te Kanakonam;
(e) bythe road from Satada to Pedna.
E. Conran-Smith, Secy. ANNEXES TO COUNTER-MEMORIAL (D NO. 13) =93
HOME DEPARTMENT
Notification
New Delhi, the zznd July 1944.
No. Bgj41.B-Poll(E).-In exercise of the powers conferred by sub-
section (2)of Section 3 of the Foreigners Act, 1940 (II of 1940)~ the
Central Government is pleased to direct that no foreigner shall depart
from British India for a place in Portuguese India except uncler the
authority of, and subject to tlie conditions preçcribed in, a permit, in
the Form annexed to this notification,issued by the Registration
Authority of the Districtin which he ri:sides.
Mr. a foreigner, whose description is given on the reverse, is autho-
rised to depart from British India for in Portuguese India within
a period of one month from the date of the issue of this permit. The
permit isvalid for a single journey only.
Date and Seal.
Signature of Registration Officer
DESCRIPTION OF THE PERMIT-HOLDER
Name.
Date of birth.
*Passport No.
%Registration No.
Colour of hair.
Colour of eyes.
Height .
Any other distinguishing marks.
Signature of the Permit-Holder.
*In the case of passport holders only.
%In the case of registered foreigners only.
E. CONRAN-SMITH S, CY.
Notification
New Delhi, the zznd July rg44.
No. 89/41. C-Poll(E).- I:nexercise of the powers conferred liy sub-
section (2)of section3 of the Foreigners Act, 1940 (Act II of 1940)~the
Central Government is pleased to direct that every foreigner,on entering
British India by land from any place within the Portuguese possession
of Goa or on leaving British India by land for any place within the said
Portuguese possession, shall, on the dernand of any police officer, any
forest officer of the Government of Bombay, any officer of the Central
Excises and Salt Revenue Department of the Government of India
=4 ANNEXES TO COUNTER-MEMORIAL (D NO. 13)
I94
who may be on duty in the Ratnagiri, Belgaum or Kanara districts
produce, for the inspection of such officer, his passport, certificate of
registration and such other proof ofhis identity as may be required by
the said officer.
E. CONRAN-SMIT H,cy.
HOMEDEPARTMEKT
Notification
New Delhi, the zznd July 1944.
No. 89141-Poll(E).-In exercise of the powers conferred by sub-
rule (1)of rule24 of the Defence of India Rules, the Central Government
is pleased to order that no person shall, on coming by land from the
Portuguese possession of Goa, enter British India elsewhere than at the
places where the boundary between the said possession and British
India is crossed by-
(a) the railway from Castle Rock to Marrnugao ;
(b) the road from Anmode to Mollem;
(c) the road from Dodamarg to Asnora;
(d) the road from MajaIi to Kanakonam; or
(e) theroad from Satada to Pedna;
Provided that any person entering British India from the said posses-
sion with the permission in writing of a police oficer, a forest officer or
any offrcerof the Central Excises and Salt Revenue Department of the
Government of India shall be exempt from the provisions of this order.
E. CONRAN-SMIT He,y.
Government of India, Home Department Notification No. 89141-(D)
Political(E),dated the 21st June, 1945.
In exercise of the powers conferred by sub-rule (1)of rule 24 of the
Defence of India Rules regarding the entry by land into British India
of persons frorn the Portuguese possession of Goa, and in supersesçion of
the notification of the Government of India in the Home Department
No. 89141-Political (E),dated the zznd July, 1944, the Central Govern-
ment is pleased to order that no person shall, on coming by land from
the Portuguese possession of Goa, enter British India elsewhere than
at the places where the boundary between the said possession and
British India is crossed by-
(i) the railway from Castle Rock to Marmugao,
(ii) the road from Anmode to Mollem,
(iii) the road from Dodamarg to Asnora,
(iv) the road from Majali to Kanakonam,
(v) the road from Satada to Pedna,
(vi)the road from Kirnapani to Arnoda,
or
(vii) the road from Bicholi to Banda. ANNEXES TO COUNTER-JIEMORIAL (D NO. 13)
I9.5
Provided that any person entering .British India from the said posses-
sion with the permission in writing of a Police Officer,a forest officer
or any officer of the Central Excises and Salt Revenue Departinent of
the Government of India shall be exempt from the provision of thiç
order.
Government of India, Home Departiment, Notification No. 89/4-1-(E)-
Political(E),dated the zxst June, 1945.
In exercise of the powei: conferred by sub-rule (1) of rule 25 of the
Defence of India rules, regarding perçons not being foreigners, proceeding
by land from British lndia to any place in the Portuguese possession of
Goa and in supersession of the notification of the Government of India
in the Home Department No. 89141-Political (E), dated the 22nd JuIy
1944, the Central Government is p1e;ised to order that no person, not
being a foreigner shall proceed by land from British India to any place
in the Portuguese possession of Goa except under the airthority of a
written permit issued by the Commissioner of Police, Bombay or by
the District Superintendent of Police of the Belgaum, Ratnagiri, North
Canara, Surat or Thana Districts or by any other police officer subordi-
nate to them and authorized by the said officers in this behalf or by any
officer of the Central Excises and Salt Revenues Department of the
Government of India or by a forest officeofthe Government of Bombay.
Provided that nothing in this order shall apply to any person proceed-
ing by one or other of the foIlowing routes, namely :-
(i) by railway,
(ii)by the road fro~nAnmode to Mollem,
(iiiby the road frorn Dodamarg to Asnora,
..vjby- the road frorn Majali to Kanakonam,
(v) by the road fro~nsatada ti,Pedna,
(vi) by the road frorn Kirnapa~ii to Arnoda, or
(vii) by the road fro~nBicholi to Banda.19~ ANKEXEÇ TO COUNTER->lERIORIA LD NO. 14)
Annex D. No. 14
1
No. 89141-Pol1 (E)
GOVERNhlENT OF INDIA
Home Department
New Delhi, the zznd November, 1945.
Notification.
in exercise of the powers conferred by sub-rule(2)of rule25 of the
Defence of India Rules, the Central Government is pleased to direct
that the notification of the Government of India in the Home Depart-
ment No. zgj41.A-Pol1 (E), dated the zzndJuly1944 shall be cancelled.
II
No. 8g/q1-Poil(E)
GOVERKhlENT OF INDIA
Home Departrnent
New Delhi, the zznd November, 1945.
Notification.
In exercise of the pou7ers conferred by sub-section(2)of section 3
of tlie Foreigners Act,1940 (II of 1940)~the Central Government is
pleased to direct that the notifications of the Government of India in
the Home Department, No. 89/41.B-Pol1 (E)and No. 8gjqr.C-Pol1 (E),
dated the zznd July 1944, shall be concelled.
III
No. 8g/q1-Pol1 (E)
GOVERNMENT OF INDIA
Home Department
Xew Delhi, the zznd November, 1945.
Notification.
In exerciseof the powers conferred by sub-rule (1)of rule 24 of the
Defence of India Rules, the Central Government is pleased to direct
that the notification of the Government of India in the Home Depart-
ment No. 89/41. (D)-Poli(E), dated the 21June, 1945shallbe cancelled. ANNEXES TO COUNTER-JlEMORIAL (D NO. 15) x97
NO.89141-Pol1 (E)
GOVEKNMENT OF TNDIA
Neml Delhi, the zznd November, -1945.
Notification.
In exercise of the powers conferred by sub-rule(1) of rule2j of the
Defence of Inclia Rules, the Central Government is pleased to direct
that the notification ofthe Government of Tndia in the Home Depart-
ment No. 89/41. (E)-Poll (IZ)dated the z~st jun1945 shall be cancelled.
(Sigr~ed)V. SHANKAR.
Under Secretary to the Government of India.
Annex D. No. rg
No. 35--3
British Consulate,
Nova Goa, the 27th March, 1945,
From
Major M. O. A. Baig, M.B.E.,
His Britannic Majesty's Consul inthe
Portuguese Possessicins iIndia.
To
The Chief of Cabinet.
Nova Goa.
Sir,
1 am directed to refer to your letter N485jG dated the 28th Septem-
ber, 1944, and to Say that at present there are no restrictions on the
entry into British India from Diu of European Portuguese subjects
domiciled in Portuguese India, nar do the Government of India propose
to introduce any such res1:rictions. E.uropean Portuguese subjectnot
domiciled in Portuguese India are, however, required to takt: out a
passport for entry into British India, under ru5of the Xndian Passport ,
Rules, 1921, unless they art: specifically exempted under an order of the
Government ofIndia.
With the assurance of my highest ejteem,
I have the honour to be,
Sir,
Your most obedient servant,
(Signed)
H. B. M'sConsul. Annex D. No. 16
(T8533/6:/375)
No. 167,
Lisbon, July, 4th 1926.
Sir,
With reference to your despatch No. 160 of the 10th ultimo (T 6121/
61/378), 1 have the honour to inform you that I have received a Note
from the Minister for Foreign Affairs stating that a Decree has been
issued according to which the Portuguese Government is now in a position
to aboIish visas on passports under certain conditions and therefore to
meet the wishes of His Majesty's Government in that respect.
z. His Excellency requests me to inquire whether His Majesty's
Government agree to abolish al1 Consular and Administrative visas on
the passports of Portuguese citizens entering or leaving the United King-
dom. He further asks whether such a regime would apply also to the
British Dominions and Colonies or would be restricted to the United
Kingdom only. .....-- -.--
3. General Carmona states that if he receives from me a favourable
reply at an early date, the new regime could be brought into force on
August 1st next.
4. A translation of the decree mentioned by His Excellency is enclosed
herein.
I have, etc.,
(Signe Lancelot D. Carnegie.
The Right Hon:
Sir Austen Chamberlain, K.G.,
etc., etc., etc.
Foreign Office, S.W. r.
15th September 1926.
Sir,
I have considered in coiisultation with the departments of His
Majesty's Government concerned your despatch No. 167 of July qth,
informing me of the willingness of the Portuguese Government to enter
into an agreement with His Majesty's Government for the abolition of
visas in the case of British and Portuguese nationals desiring to enter
the respective territories, and 1 shall be glad ifyou will take steps for
the conclusion of such an agreement, by means of an exchange of notes.
2. His Majesty's Government are prepared for their part to permit
al1 Portuguese nationals to enter Great Britain and Northern Ireland
without firstobtaining a British visa, provided that al1British subjects
of whatever race or origin wiIl be permitted to enter Portugal on similar
terms. Portuguese nationals wiil, of course, in cornmon with al1 other
aliens, still have to satisfy the requirements of the Immigration Officer
at the port of arrival. 3. His Majesty's Governinent are also prepared to agree to the admis-
sion of Portuguese nationals without British visas irito al1 British
colonies and protectorates, except Malta and Gibraltar, provided that
al1 British çubjects are similarly adniitted to the Portuguese overseas
territories, andsubject to the proviso in respect of immigration regula-
tions set forth in paragrapfz above.
4. Portuguese nationals will also be admitted to the mandated
territories of Tanganyika, the Cameroons and Togoland. It will, how-
ever, still be necessary for Portuguese nationals to obtain visas as a
preliminary to entry into .Palestine, 'Trans-Jordan and Iraq, since itis
considered desirable that the entry into those territories of persons
without visas should be restrictedto niitives of the territories themselves,
and even British subjects are required to obtajn visas before entering
them. You should explain thisto the Portuguese Government.
5. The Governments of the Self-Gciverning Dominions and Southern
Rhodesia have been asked whether they are prepared to make unilateral
arrangements for the adinission of Portuguese nationals into their
territories without a visa, but it will not be possible to incliide India
among the territories to which Portugilese nationals may be so admitted.
1 am, etc.,
H. A. Grant Watson, Esq.,
etc., etc., etc., G. R. WAIINEK.
Lisbon.
Passport Control Depart~nent ,
Foreign Office.
December 30, 1926.
Reciprocal Abolition of Visas for British and Portuguese Nationals.
ON and after the 15th January, 1927 Portuguese citizens will no longer
require a British visa for the purpose of entering Great Britain and
Northern Ireland, and British subjects will not require a Portuguese
visa if travelling to Portugal.
Portuguese citizens will still be required to bein possession of paçs-
ports for the purpose of entering Grcat Britain and Northern :Ireland,
and must satisfy the Immigration Authorities on arriva1 that they
comply with the provisions of the Immigration Regulationç.
To His Majesty's Consular and
Passport Control Officers.
(V/74/1926) Passport Control Department,
Foreign Office,
February 1, 1927.
Visas for India and Ceylon.
SEVERA cases have occurred in which aIiens have arrived in Ceylon
in possession of passports bearing a visa for India only, and have stated
that they were informed that a visa for India included Ceylon.
2. The attention of al1 Consular and Passport Control Officers is
drawn to the fact that, except for nationals of those countries where the
abolition of the visa for the United Kingdom is extended to the non-
self-governing Colonies and Protectorates (see Summary of Visa
Instructions), Ceylon should be specifically mentioned on the visa if an
alien intends to enter that Colony, and that a visa for India only does
not include Ceylon.
3. It must be borne in mind that in no case have visas been abolished
for nationals of any coiintrv forthe purpose of entry into India.
To His Majesty's Consular and
Passport Control Officers.
(v/7/1927)
Annex D. No. 17
ACT No. XVI of 1939
(PASSED BY THE INDIAN LEGISLATURE)
(Received the assent of the Governor General on the 8th April, 1939)
An Act to Provide for the registration of foreigners in British India
WHEKEAS it içexpedienf to provide for the registration of foreigners
entering, being present in, and departing from, British India;
It is hereby enacted as fo1lows.-
and extent. I. (1)This Act may be called the Registration of Foreigners Act,rg39.
(2) It extends to the whole of British India.
Definitions. 2. In this Act-
(a) the word "foreigner" shaIl denote a person who is not-
(i)a British subject domiciled in the United Kingdom; or
(ii)a British .Tndian subject ; or
(iii)a ruler or subject of an Indian State; or
(iv) a person duly appointed by riforeign Government to
exercise diplornatic functions; or
(v) a consul or a vice-consul;
(b) "prescribed" means yrescribed by rules made under this Act. ANNEXES TO COUNTER-MEMORIAL (D NO. 17) 201
3. The Central Governrnent may after previous publication, by ;,SF tomake
notification in the officia1Gazette, make rules with respect to foreigners
for any or al1of the following purposes, that is to say-
(a) for requiriiig any foreigner entering, or being present in,
British India to report his presence to a prescribed authority within
such time and in such rnanner and with such particulars as Inay be
prescribed ;
(b) for requiring any foreigner moving from one place to another
place in Britiski India to report, on arriva1 at such other place, lîis pre-
sence to a prescribed authority within such time and in such manner
and with such particulars as rnay be prescribed;
(c) for requiring any foreigner wfio is about to Ieave British India
to report the date of his intended departure and such other particulars
as rnay be prescribed to such authority and within such period before
departure as rnay be prescribed;
(d) for requiring any foreigner entering, being present in, or
departing from, British India to proiiuce, on demand by a prescribed
authority, such proof of his identity as rnay be prescribed;
(e) for requiring any person having the management of any hotel,
boarding house,.sarai or any other prrmises of like nature tu report the
name of any foreigner residing therein for whatever duratiori, to a
prescribed autliority withili such time and in such manner and with
such particulars as rnay be prescribed;
(f) for requiring any person having the management or control
of any vessel or aircraft to furnish to a prescribed authority such infor-
mation as rnay be prescribed regarding any foreigner entering, or
intending to depart frorn, British India in such vessel or aircra.ft, and
to furnish to such authority such assistance as may be necessary or
prescribed for giving effect to this Act;
(g) for providing for such other incidental or supplementary rnatters
as rnay appear to the Central Goverriment necessary or expedient for
giving effect to this Act.
4. If any question arises with reference to this Act or any rule made of
thereunder, whetlier any pt:rson is or is not foreigner, or is or is not a
foreigner of a particular class or description, the onus of provirig that
such person js not a foreigner or is not a foreigner of such pai-ticular
class of description, as the case rnay bt:, shall, notwithstanding anything
contained in the Indian Evidence Act, 1872 ,ie upon such person. 1 of1872.
5. Any person who contravenes, or attempts to contravene, or fails Penalties.
to comply with, any provision of anjr rule made under this Act shall
be punished, if a foreigner, with imprisonment fora term which Tnay
extend to one year or with fine which rnay extend to one thousand
rupees or with both, or if riot a foreigner, with fine which rnay estend
to five hundred rupees.
6. The Central Government may, by order, declare that any or al1 Powerto
of the provisions of the rules made under this Act shall not apply, or ",~?~ati$?f
shall apply .only with such modifications or subject to such conditions Act-
as rnay be specified in the said order, t:o or in relation any individual
foreigner or any class or description of foreigner: 202 ANNEXES TO COUNTER-AIEMORIAL (D NO. 18)
Provided that a copy of every such order shall be placed on the table
of both Houses of Central Legislature as soon as may be after its promul-
gation.
Protection to 7. NO suit, prosecution or other legal proceeding shall lie against
mrsons acting
under this any person for anything which is in good faith done or intended to be
done under this Act.
A~rilicatioof 8. The provisions of this Act shall be in addition to, and not in dero-
barred.ws notgation of, the provisions of the Foreigners Act, 1864 and any other lau-
III of1864. for the tirne being in force.
Annex D. No.18
Part I
The Registration of Foreigners Rules, 1939
No. 21/24/39, dated the zrst June, 1939.-In exercise of the powers
conferred by section 3 of the Registration of Foreigners Act, 1939 (XVI
of 1939). the Central Government is pleased to rnake the following rules :-
THE REGISTRATION OF FOREIGEERS RULES, 1939.
I. Short title and commencement.-(r) These rules may be called the
Registration of Foreigners Rules, 1939.
(2) They shall corne into force on the 1st July 1939.
l [(3) They extend to the whole of British India, induding those
excIuded and partially excluded areas to which the Act has been, or may
hereafter be ayplied by notification under sub-section (1) of section92 of
the Govemment of India Act, 1935.1
2. Definitions and interpretation .-In these rules unless there is
anything repugnant in the subject or context-
(a) "Act" means the Registration of Foreigners Act, 1939;
(6) "Certificate of Registration" means a Certificate of Registration
issued in pursuance of rule 6;
(c) "Form" means one of the Forms appended to these rules;
(d) "master of the vessei" includes the pilot of an aircraft and any
person authorised by such master or pilot to discharge on Iiis behaIf any
of the duties imposed upon him by these rules;
(e) "passenger" means any person travelling or seeking to travelon
board a vessel who is not a bona fide searnan,
[(ee) :'police officer" includes, in British Baluchistan, a levy officer
and "police officer not below the rank of head constable" includes a levy
officer not below the rank of Jamadar ;]
(f) "registered address" means a foreigner's address in British India
as reported under rule 5 and recorded in item II of his Certificate of
Registration ;
l Ins. by Notfn. No. 21/59/3g-P01. (W), dated the 25th October, 1939, see
Gazette ofIndia, 1939, Pt.1p. 2768.
Ins. by Notfn. So. 21/68/39 Pol. (W), dated 13th October, 1939, ibid., p. 1704. (g)"Registration Officer" means a Registration Officerappointed by
the Central Government under rule 3 and includes an authority author-
ised in writing by a Registration Officer to perfom the duties of the
.Registration Officer on his behalf;
(h) "residence" means ordinary dwelling place in British India;
(i) "seamen" means a person empIoyed on, or engaged in the
working of a vessel ;
(j) "tourist" means a foreigner having no residence or occupation
in India urhosc stay in India does nut exceed three months, who has
no other object in visiting India than recreation or sight-seeing and
whose Certificate of Registration has been endorsed "Tourist" in accord-
ance with the provisions of rule 7; and
(k) "vessel" incIudes aircraft but cloesnot include a vessel travelling
solely between ports or places in India.
3. Registration 0flicers.-(1) The Central Government may appoint
Registration Offices for the purposes of these rules for such areas as it
thinks fit.
(2) A Kegistration Officer may, with the approval of the Centra1
Government, authorise in witing any authority to perfom any or al1
of his fuiictions under these rules.
4. Passengers on vessels to report arriva1 in British India.-Every
passenger who arrives in British India on board any vessel shall, 011being
required so to do by, or on behalf of, the master of the vessel, fumish
true particulars as to his name and nationality and, if he is a foreigner,
his age, sex, place of birth and address or intended address in British
India ,the purpose of his visit and the pi~rposedlength of his stay in India.
5. Report by foreigner of his addres:; in British India, etc.-(1) Every
foreigner entering, or being present in British India shall present in
person to the appropriate Registration Officer prescribed by rule 6 a
report (hereinafter referred to as a repistration report) of his arrival or
presence, as the case may be, in British India.
l[Provided that a "pardanashin'hornan who is accompanied by amale
companion will not be required to present theregistration report in person
but may do so through her maIe companion.]
(2) Every registration report shall be made in writing, in the
English Ianguage and in triplicate and shall cwtain a true statement
of the foreigner's address in British India and of the other particulars
specified in itenis2 to IO of ITom A and in the case of a foreigner entering
British India, such of the particulars specified in items 12 to 15 thereof
as may be app--pri~te.
(3) For the purposes of'sub-mle (2) a foreigner's address in British
India shall be-
(a) the place of his residence, or
(b) if he has no residence, the place at which, at the time of rnaking
his registration report he is for the time being living or at which he first
intends to live after his arrival in British India:
'.t Ins. Li?Xotfn. No. 1lr7j43-Politica(E), dated the 31st January 15344 ,ee
Gazette of India,1944.Pt. 1, p.137. Provided that, subject to the approval of the Registration Officer, any
foreigner who has no residence in British India may, with the consent
previously obtained of a British subject residing in British India, being
a banker or a person having the management of a hotel or of a tourist or
travel agency, report on his address in British India the name and address
of the said British subject and thereupon the name and address of that
British subject shall, for so long as the provisions of sub-rule (4) are
complied with, be deemed to be the foreigner's address in British India.
l [Provided further that, in the case of a foreigner who has no residence
in British India, whose occupation is such as to necessitate frequent
travelling, who is not Iikely to return within a reasonable time to the
district in which he is at any time living and who is unable to avail
himself of the provisions of the foregoing proviso, the office of the
Registration Officer of the district in which he has first registered upon
hiç arrival in British India shall be deemcd to be his address in British
India.]
(4) In any case to which the proviso to sub-mle (3)applies, it shall
be the duty-
(a) of the foreigner to keep the ~ritish subject informed of his
current address; and
(b) of the British subject to fumish al1 such information in his
possession relating tu the foreigner as may be demanded for any of the
purposes of the Act or of theçe Rules by any Registration Officer, ma-
gistrate or police officer not below the rank of head constable.
(5) Copies of Form A may be obtained on application from any
Registration Officer.
6. Procedure for registratiom-(1) The registration report shall be
presented-
(a) by a foreigner who is present in British India on the date on
which these rules come into force, within fifteen days of the said date to
the Registration Officer of the district in which his address in British
India is situated, or, if on the said date and for a period of fourteen days
thereafter the foreigner is absent from that district, to the Registration
Officer of the district in which the foreigneris for the time being present ;
(b) by a foreigner who enters British India on board a vessel, at such
time and place and to such authority as may be appointed for the
purpoçe by general or special direction of the Registration Officer of the
port or other place of arrival;
(c)by a foreigner who enters British India by land, within twenty-
four hours of his arriva1 in British India to a Registration Officer:
Provided that any foreigner who enters British India in the course
of a continuous journey by railway shall present a registration report
to the Registration Officer of the first district in British India at which
he breaks his journey.
(2) Every foreigner presenting a registration report shall furnish to
the Registration Officer such information as may be in his possession for
the purpose of satisfying the said officeras tothe accuracy of the particu-
'
1 Ins. by Notfn. No. 1/14/41-Politi (c)a,ldated the29th March, 1943. sec
Gazette of India1943, Pt. 1p. 373. ANNEXES TO COUNTER-3IEhlORIA1, (Il NO. 18) 20j
lars specified therein and shall, on being required so to do, sign the
registration report in the presence of the said officer and shallthereupon
be entitled to receive from the said officer a Certificate of Registration
in Part 111 of Form A:
Provided that, in any case in which the registration report is presented
by a foreigner who enters British India on board any vesse1 to the
Registration Officer of the port or other place of arriva1 and the for-
eigner's address in British India is not u.ittiin the jurisdiction of that
Registration Officer, a temporary certificate in Form B shall be issued
and the said foreigner shall thereafter comply with the conditions set
out in Form B.
(3) If,in pursuance of clause (a) of sub-rule (I),a foreigner hiis pre-
sented a registration report to the Registration Officer of a district other
than the district of his registered addsess, then, for so long as the said
foreigner does tiot return tc)the district of liis registeretl addres;, that
Registration Officer shall, for the purposes of rules IO, II and 12, be
deemed to be the Registration Officer of the district in wIiich his regis-
tered address is situated.
7. Yeriod of validity of Certificates of Registration.-(1) If tlie
Registration Officer is sat isfied that any foreigner entering British
lndia iça bona fide tourist, he may endixse on the Certificate of Registra-
tion the word "Tourist" artd record therein the date of the expiry of
the validity of the said certificate as so endorsed.
(2) Where a tourist enter:; British Iridia on the authority of a transit
visa issued to him under tht: Indian Passport Rules, 1921 l,the validity
of his Certificate of Registration shall be CO-extensivewith the validity
of the said transit visa.In respect of ariy other tourist, the Certificate of
Registration shall be valid for the period of the foreigner's projected
stay in British India, subject to the condition that in nu case shall the
period of such vaIiditp esceed thrce months.
[Provided that, if the certificate of1-egistrationofa tourist, other than
a tourist who lias entered British Inclia on the authority of a transit
visa, isexpreçsed to be valid for a period of less than three months, the
period of validity of such certificate may, on sufficient cause being shown
by the said tourist, be extended by any Registration Officer, subject to
the condition that in no case shall tht: vaIidity be so extended beyond
three months after the date on which the said tourist entered British
India.]
(3) The Certificate of Registration issued in respect of any foreigner
other than a tourist shall be valid for so long as the foreigner does not
depart from India.
(4) Any touristwho is in BritishIndia after the date ofthe expiry of
his Certificate of Registration shall cease to be a- tourist within the
meaning of these rules.
8. Production of proof of identity.--(r) Every foreigner shall, within
twenty-four hours of demand being niade of him by any Registration
Officer, magiçtrate, or policeoficer not below therank of head constable,
General Statutory Ruies and Orders, Vol. IV, 570.
Added by Notfn. So. 211196j3g-Pol.(W), dated the 27th February, 1940,
see Gazette of India, 1940,Pt1, p257.206 .4NNEXES TO COUNTER-MEMORIAL (D NO. 18)
produce at such place as may be specified his passport and such other
proof of his identity as may be required for any purpose connected with
the enforcement of these rules :
Provided that the said Registration Officer, magistrate or police
officer rnay, on sufficientcause being shown, extend the aforesaid period
of twenty-four hours to such period as, in the circumstances, may be
necessary for the production of the said passport or other proof of
identity.
(2)Every foreigner entering British India shall, on demand being
made of him by the Registration Officer, deliver his passport or other
proof of identity to that Officer and shall thereafter attend at such time
and place as the Registration Officer may direct for the purpose of
receiving back his passport.
(3) Where in pursuance of sub-rule (2) a foreigner surrenders his
passport or other proof of identity he shall be entitled to receive a
receipt for it from the Registration Officer.
9. Production of Certificate of Registration.-Every registered for-
eigner shall, within twenty-four hours of demand being made of him
by any Registration Officer, any magistrate or any police officer not
below the rank of head constable, produce or cause to be produced his
Certificate of Registration for the inspection of such Registration
Officer, magistrate or police officer:
Provided that the Registration Officer,magistrate or police officermay,
on suficient cause being shown, extend the aforesaid period of twenty-
four hours to such period as, in the circumstances, may be reasonably
necessary for the production of the said certificate.
IO. Report of temporary absence from registered addrcss.-(1) If at
any time a foreigner isabsent from his registered address for a continuous
period of one month he shall report to the Registration Officer of the
district in which his registered address is situated his current address
and every subsequent change of address including his return to his
registered address.
(2) Every foreigner who stays for a period of more than twenty-four
hours at any place in any other district than the district in which his
registered address is situated shall report his presence in that other
district to the Registration Officer of that district:
Provided that any such foreigner as aforesaid who has made a report
in Form C in accordance with the provisions of rule 14 shall be deemed
to have complied with this sub-rule.
i(3)The requirements of sub-rule (1)shall be deemed to have been
fulfilled if the foreigner, either before leaving his registered address or
on, or before the expiry of one month from the date of, so leaving,
furnishes to the Registration Officer an itinerary in writing setting out
his current address dbring every day of his absence from his registered
address and the date on which he intends to return to his registered
address :
Provided that if any change in the itinerary is made, intimation shall
be sent to the Registration Officer.
Added by Notfn. No. z1/68/3g-Po(Wl.), dated the 13th October.1939, see
Gazette of India. 1939, 1, p.1704. (4) The report prescribed by sub-rule (2)may be made in writing and
the requirements of the said sub-rule shalI be deemed to have been
fulfilled if, prior to his arrival ia district other than that in which his
registered address is situateti, the foreiper furnishes to the Registration
Officer of the said district intimation of the dates of his proposed arrival
in, and departure from, the said district:
Provided that where any foreigner who has furnished intimation as
aforesaid does not arrive in or depart from the said district on the dates
specified in the intimation, he shall report the dates of his arrival and
departure within twenty-four hours tfiereof to the Registration Officer.
II. Report of change of registered address.-(1) Every foreigner who
is about to change his registered address shall furnish to the Registration
Officer of the district in which his registered address is situated parti-
culars of his new address and the date of the change.
(2) Every foreigner who effects any change of his address in :British
India to any other district than the district of his registered address
shall, within twenty-four liours of his arrival in that other district,
report his arriva1 to the Registration Officer of that district.
(3) A foreigner shall be deemed to change his registered adclress-
(a) if he departs from British India;
(b)if he changes his residence from one place to another place in
British India;
(c)if, having no residence, he leaves hiç registered address knowing
that he is not likely thereafter to retiirn thereto within six months of
leaving it, or
(d) in any case to which the proviso to sub-rule (3) of rule 5 appjies,
if either he or the British subject whose address is deemed to be his
registered address applies to. the Registration Officer to be ahsolved
from, or fails at any time to discharge the obligations laid upori them
by sub-rule (4) of that rule.
l[Provided that clause (e) of this suli-rule shall not apply in any case
in which in accordance with the second provise to sub-rule (3) of
ruIe 5 the foreigner's registered addrejs is the office of the Registration
Officer of the district in which he first registered upon his arrival in
British India.]
12. Reports of changes other than of address.-Without prejudice
to the provisions of rules ICI and II every foreigner shall furnish to the
Registration Officer of the district in which his registered address is
situated particulars of any circumstai.ice affecting in any manner the
accuracy of the particulars recorded in his Certificate of Registration
within fourteen days after the circumsiance has occurred, and generally
shall supply to the Registration Officer al1such information as rnay be
necessary for maintaining the accuracy of that Certificate.
13. Saving for tourists, etc.-(1) Nothing in rules IO, II and ra shall
apply to any tourist for so lcingas the ~ieriodof vdidity of his Certificate
of Registration has not expired:
Ins.by Notfn. No. i/i4/41-Politica(E), dated the 29th March 1943, see
Gazette of India, 1943, Pt1,p. 373.SOS ANSEXES TO COUNTER-~IEMORIAL (D NO. 18)
Provided that any Registration Officermay, in relation to any tourist,
at any time cancel the said period of validity and thereupon the tourist
shall cease to be a tourist within the meaning of these rules.
(2)Nothing in sub-rule (1)of rule 10 shall apply to the case of any
foreigner in respect of whom, in pursuance of the proviso to sub-rule (3)
of rule 5,the address of a British subject is deemed to be his registered
address.
14. Report to be made to and by hotel keepers.-(1) Every keeper
of a hoteI shall require every visitor to the hotel to record legibly, or
furnish the particulars necessary for recording, and sign, on his arrival
at the hotel, his name and nationality in a register maintained for the
purpose and, if any such visitor is a foreigner, shall further require him-
- (a o)n his arriva1 at such hotel to complete, or furnish theparticulars
necessary for the cornpletion of, Form C, and
(6)at the timc of his departure frorn such hotel tu record, or cause tu
be recorded, in the said register, the date and time of his departure
and the address to lvhich he is proceeding.
(2)The register prescribed by sub-rule (1)shall at al1times be made
available for inspection, on the dernand of any Registration Officer, any
magistrate or any police officer not below the rank of head constable.
'(3)Every visitor to any hotel shall, on being required so to do by the
keeper of the hotel, record legibly or fiirnish the particulars necessary
for recording, and sign, his name and nationality, in the register pre-
scribed by sub-rule (1)and, if such visitor ia foreigner, shall also-
(a) on his arrival at such hotel complete, or fuAish the particulars
required for the compIetion of, Form C;
(6)at the time of-hiç departure from çuch hotel, record, or furnish
the particulars necessary for recordiiig, in the said register, the date
and time of his departure and the address to which he is proceeding.
(4) Every particular, other than the signature of the keeper of a hotel
or a visitor, which is required by this rule to be recorded in the said
register or in Form C, shall be recorded-
(a)ifthe visitor is able to write in tlie English language, by the visitor
and in the English language;
(b)if the visitor is unable to write in the English language, by the
keeper of the hotel and in the English language, if he is so able or other-
wise, in an Indian language.
(5)If a visitor doesnot understand the English Ianguage, it shall be
the duty of the keeper of the hotel, if so requested, to explain to the
visitor the requirements of this rule and Form C.
(6)The keeper of the hotcl shall, as soon as may be, but not more
than twenty-four hours, after the arrival of any foreigner, transmit a
copy of Form C to the Registration Officer.
(7)For the purpose of this rule-
(a) "hotel" inckdes any boarding-houçe, club, dak-bungalow, reçt-
house, sarai or other premises of like nature;
(b) "keeper of a hotel" means the person having the management
of a hotel and includes any .person authorised by him, and competent,
to perform the duties of the keeper of the hotel under this rule; ASXEXES TO COUNTER-MEMORIAL (D NO, 18) 209
(c) "sign" includes, in respect of a visitor who is unable to write, the
making of a thumb impression or other mark by means of which he iç
accustomed to attest a document ; and
(d) "visitor" means a person for whom accommodation is provided
at a hotel.
(8) Copies of Form C may be obtained, on application, from any
Registration Officer.
rg. l[(r) Every foreigner who isabout to depart from British India
on board a vessel [shall, unless, being a tourist, his case is govenled by
sub-rule (IB), produce at the time of making the report under rule
II], his Certificiite of Registration before the Registration Officer of the
district in which his rcgistered addrcss is situate and the said Registration
Officer shall make, sign and seal on the said Certificate an endorsement
to the effect that the said report has been duly made, and the foreigner
shalI surrender his certificate so endorsed to the Registration OEicer of
the place from which the vessel leaves British India or to çuch authority
as the said Officer may appoint in this behalf.
(IA) Every foreigner who is about to depart from British India by
land [shall, uiilcss, being a tourist, liis case is governed by sub-rule
(IB) surrender at the time of making the report required by rule II],
his Certificate of Registraticin to the Registration Officer of the district
in which his registered address is situate.]
{(IB) Every tourist shiill, subject to the provisions of sub-nile (3,
on his departure from British India, surrender his Certificate of Regis-
; tration-
(a) if he departs on board any vessel, to the Registration Off'icerof
the place from which the vessel leaves 13ritish India or to such authority
as the said officerrnay appoint in this behalf; and
(b)if he departs from British Intlia by land, to'the Registration
Officer having jurisdictiori at the place from which he departs from
British India] ;
(2) Every passenger [other than a passenger for whom a bertli
has been engaged by or on behalf of Government,]; who is about to
depart from British India on board aiiy vessel shall, on the request of
a person having the nianagement of such vessel, furnish or cause to be
furnished in writing ü true statement of the particulars set out initems
1, 2and IO and, if he is a foreigner, iteins 3 to 9, of Form D.
(3) [Nothing in sub-ruli: (I), (IA),or (XE shaIl require any foreigner
who departs from British Intiia to an Indian State or to a Tribal, 1-eased
or Administered Area to surrender hisCertificate of Registration but in
every such case, except in the case of a tourist, the report prescribed
ISubst. by Kotfn. No. 21/68!39. Pol. (W), dated the 13th October, 1939. see
Gazette of India 1939, Pt. 1p. 1704.
Subst. by Notfn. No. 21/34/40d,ated thr: 18th February,1941, see Gazette of
India, 1941, Pt. 1,p.247
Inç. ibid.
Subst. by Notfn. Ko. 21/68/3g-P01.(W), dated the 13th October. 1939, see
Gazette of India 1939,Pt. 1,p. 1704.
Subst. by Notfn. No. z1/3q/,kodated the 18th February, 1941, see Gazette of
India, 1941, Pt.1,p. 247.
15by sub-sule (1)of rule II shall be made to the Registration Officer of the
district of the foreigner's registered address.
(4) Any foreigner who surrenders his Certificate of Registration in
accordance with [sub-rule (IA)] shall receive from the Registration
Officer a license to travel through British India to the place from which
he proposes to leave British India. Every such licence shall specify the
route by which the foreigner will travel and the period for which it is
valid and shall for the purposes of these rules be deemed to be a Certificate
of Registration for so long as its conditions as to the period and route
for whicli it is expressed to be valid are not contravened.
(5) Copies of Form D may be obtained, on application, from any
Registration Officer.
16. Obligations of rnaçters of vesseis, etc.-(=) ~he maçter of any
vessel arriving ai or leaving any place in British India shall-
(a) Before any passenger disembarks or embarks, supply to the
Registration Officer of the place of arriva1 in, or departure from, British
India a schedule of passengers in Form E or Form F as the case may be;
(b) require every foreign passenger who is about to disembark in
British India to complete, or furnish the particulars required for the
completion of, items 2 to 15by the Registration Officerfor the purpose of
giving him the direction prescribed by clause (b) of sub-rule(1)of rule 6;
(c)if so requested by the Regiçtration Officer, require any foreign
passenger about to depart from British India to surrender his Certificate
of Registration, and deliver such Certificate together with the schedule
in Form F to the Registration Officer;
(d) ifso required by the Registration OAicer, furnish on amval at
the said place a true statement in writing showing the name and natio-
nality of every seaman employed on such vessel, and at the time of
departing from such place take such steps as the Registration Officer
may specify to ascertain whether or not any such seaman as aforesaid
who is a foreigner is about to depart on board such vessel: and
(e) generally, render to the Registration Officer such assistance as
he may reasonably require for carrying out the purposes of the Act and
these rules.
(2) Every particular, other than the signature of a foreign passenger,
which is required by this rule to be recorded in Form A,çhall be recorded-
(a) if the passenger Isable to write in the English language, by the
passenger and in the English language;
(b) if the passenger is unable to write in the English language, by
the master of the vessel and in the English language or, where no seaman
on board the vessel is able to write in the English language, in an Indian
language.
(3) Ifa foreign passenger does not understand the English language,
it shall be theduty of the master of the vessel, if so requested, to explain
to the foreign passenger the requirements of this rule and Form A.
(4) The person having the management of any vessel shall-
(a) require any person who intends to embark on that vessel forthe
purpose of leaving British India to furnish in writing a true statement
1 Ins.by Notfn. No.21/68/3g-Po l. ), dated th13thOctober,1939,see Gazette
ofIndia, Pt.1,p.1704. ANNEXES TO COUNTER-MEMORIAL (D NO. 18) 211
ofthe particulars set out iriitems I, 2 and IO and, if he is a foi-eigner,
items 3 to g of Form D;
(b) cause Form D when so comp1t:ted to be delivered together with
the schedule in Form F to the Registration Officer of the place of depar-
ture ; and
(c)take steps to ensurt: that no foreigner embarks until authorised
so to do by the Registration Officer.
(5) Forms D, E and F shall be completed in the English language;
provided that in any case iri which there is no seaman on board a vesse1
who is able to write in the 1Snglishlanguage, Form E rnay be completed
in an Indian language.
(6) Copies of Forms E and F may be obtained, on application, from
any Registration Officer.
17, Duplicate Certificate of ~e~istration.-(1) If any certificate of
Registration issued under tlieçe rules is lost or destroyed, the foreigner to
whom it was issued shall make or send to the Registration Officer of the
districtof his rcgistered address a report of the circumstances in which it
was so lost or destroyed togetlier with an application in writing for the
issue of a dupIicate copy of the Certificate of Registration.
(2) There shall be paid for every duplicate copy of a Certificate of
Registration a fee of two rupees.
Xnnex D. No. 18
Part 2
Registration of Fcireigners(E.xemption) Order, -1939.
No. z1/32/3~PoEiticaE, dated the27st Jzl~e 1939,-In exercise of the
power conferred by section 6 of the Registration of Foreigners Act,
1939 (XVI of 1939) he Central Government is pleased to make the
Declarations hereinafter set out in this0rder:-
r.That the provisions of the Regiçtration of Foreigners Rules 1939 '
(hereinafter in this Order referred to as the Rules) shall not apply to,
or in relation to, anyerson who has not attained theage of sixteen years.
2. That the provisions of the Ruleç, except such of the provisions of
rules 4, 14,15and r6 as apply to, or in relation to, passengers and visitors
who are not foreigners shall not apply to, or in relation to, any subject
of His Majesty (other tharia person who was at birth a subject of any
State in Europe excluding His Majesty's Dominions in Europe or a
Japanese, Chinese or Thai subject) .
3. That the provisions of the Rules, rxcept rule 8 and such of the pro-
visions of nile4, 14,15 and 16 as apply to, or in relation to, passengers
and visitors who are not foreigners, shalnot apply to, or in relatioii to,-
(a)any foreigner in the serviceofHis Majesty;
I Supra, p480.
Ins.by Notfn.No. 9/64/41.dated the 6th June, 1942,see GazetteofIndia, (b) any British protected person (other than a person who was at
birth a subject of any State in Europe excluding His Majesty's Domin-
ions in Europe or a Japanese, Chinese or Thai subject) ;
(c) the wife and any child of-
(i) any person duly appointed by a foreign Government to
exercise dipiornatic functions, or
(ii)any consul or vice-consul;
(d) any person who is a subject of the Sultan of Muscat and Oman;
l)(dd) any French subject of non-Asiatic birth ordinarily resident
in any of the French settlemcnts bounded by India) ;
2, (e) any person of Asiatic birth who by any law for the time being
in force is not required to obtain a visa for the purpose of entering
British India and who is a subject of any State having sovereignty over
any territory of which the boundaries are coterminous with the bound-
aries, external or internal, of India; ;
(f) any foreigner not specified in any of the preceding clauses of
this Declaration who enters British India solely in transit to a destination
beyond British India, for so long as he is authorised to travel in British
India under a licence previously obtained by him from the Registration
Officer of the place at which he enters British India and complies with
such conditions as to route and other matters as may be specified in the
said licence.
4, (g) any British subject who-
(i) has acquired British nationality by marriage or has been
granted a certificate of naturalisation as a British subject
under any law for the time being in force in British India,
and
(ii) has been a British subjcct for not less than fifteen years, and
(iii) Save when he has been a British subject for not Iess than
twenty-five years, has obtained from the Registration OfFicer
a certificate to the effect that he has furnished a statement
of al1 visits made by him since the year 1926 to any foreign
territory :
Provided that the Central Government may, be any order
in writing served on any person, direct that the exemption
confered by this clause shall cease to extend to that person.)
6, (h) any mernber of the naval, military or air force of the United
States of America, Chinese, Dutch, Free French or any other Allied
nation arriving in India in the discharge of his officia1duties; and
Ins. by Notfn. No. 21/15/40, dated the 5th June 1940, see Gazette of India.
1940. Pt. 1,p. 816
¶ Subst. by Notfn. No. 1/17/43-Political (E), dated the 1st May 1943, seeGazette
of India,1943, Pt. I,p. 451.
Wcird "or"ornitted by Notfn. No. 1/~6/4~-Political (E), dated the 6th May
1943, see Gazette of India, 1943, Pt1, p. 466.
Ins. ibid.
Ins. by Notfn. No. 1/30/43-Political(E), dated the 7th July 1943, see Gazette
of India, 1943. Pt. r, p722. (i) any technical representative or civil service employee of the
United States of America, Chinese, Dutch, Free French or other Allied
naval, military or air force in -1ndia who is subject to naval, military,
or air force discipline and is in possession of a certificate inthe form
prescribed in the schedule ht:reto annexed and issued by l(or on behalf of)
an officer of the appropriate force not below the rank of a Captain in the
Navy, a Brigadier or an Air Commodore.
Gazette ofIndia,.1943,Pt.3I,p.-1052,ical (E), dated the 20th September 1943seeANNEX E 216 ANNEXES TO COUNTER-MEMORIAL (E KO. I)
Annex E, No. I
EXTRAC TROM "ANELEMENTAA RNYALYSI OSFTHE LAWS & REGUL-
ATIONS, ENACTED BY THE GOVERNO GRENERAL IN COUNCI LT FORT
WILLIAM IK BENGAL FOR THE CIVILGOVERNMEN OT TEE BRITISH
TERRITORI ENDER THAT PRESIDENCY B" JOHN HERBEX TARINGTON,
PRESIDENT OF THE COUNCI OF THE COLLEG REEGULATION CS, LCUTTA.
PRINTED AT THE CALCUTT GAAZETTP ERESS,1817, PAGES 405-416.
Ancient formsON THE RIGHTÇ AND PRIVILEG EFJAGEEHDARS. "The ancient norms
EL$~~: Ff'he hlogul constitution appear to have nearly expiAULUMGEER,
how farin and when the Company acquired possession of the dewanny, the traces
~ ~ ~ $ ~ tof them were only to be foundTt is not therefore surpristhat the
aceuired thEnglish should have adopted erroneous ideas on this subject ;and have
dewannygrant.confirmed abuses which they found to exjsIn no instance isthis
reflection more applicable, than to the su1jmean now to discuss,
the natureofthe tenure called jageer."
Whatthejaseer"1 SHALL first explain what this tenureunder the reguIar consti-
tution of the Mogul Empire, in order to point out those abuses which
regular have subsequently prevailein it,with considerable detriment to the
constitutofinterests of the Government."
Empire.l
Themunsubto "A JAGEER is properly ail appendage ta dignitycalled munsub,
jageewhich it is thereforé neceçsary to explain. In the Mogul Empire there
amendase. are no hereditary dignities. The rank of the nobles was confebyed
special appointmentfrom the Emperor forlife only, and revocable at
his pleasure; and it was estimated by the number of horse which they
were supposed to command. This command was denominated munsub;
and a jageer was an appendageto it.The mode of granting munsubs
and jageers wasirst reduced to a regular system in the rAKBER,f
when the highest munsub conferred was ten thousandand the lowest
ten; being inal1 sixtsix; of which those above five thousand were
granted only to tsons of the Emperor. The person on whom a munsub
was conferred was styled munsubdar.He was raised to this dignity
eitherby the immediate selection of the Emperor himself, or from the
recommendation of the Nazims of Bengal, Kabul, and Decan; who, by
reason of the superior importance of their charge, and the distance of
their governments from the court, were allowed the privilege of recom-
mending for preferment those persons whose power anabilitiethey
required for the support of their administratThe forrns attending
the appointmentofa munsubdar are detailed in the appendix. It is only
here necessary to remark that the Emperor's pleasure, signified by his
signaturewas equally 'essential for the appointmeamunsubdar, or
for increasing his ra1.
l"The Emperor's pleasure being previously one of the four Bukshees
at the presence (who were dignified with the appelation of Buksheean Oozzam,
or the Grand Bukshees) presented atohis hlajesty on behalf of the person
to be prornoted. specifying his name, with that of his famiforthnd setting
his request to be erirolled arnong the number of the royal servants. A sewal, or
or rank of a munsubdar, whether in consequence of the Emperor's order, or on thetib.
recornmendation of the nazims of the soubahs mentithe minute. The
sewal, or petition, having received the approbation of his Majesty, was referred ANNEXES TO COUNTER-LIENORIAL (E NO. 1)
217
THE number of horse, which constitiited the rank of the munsub, was Horse attached
rnerely nominal; and the pei-wnal pay of the rnunsubdar, though regula- g$.zrnsub
ted by it, was distinct froin that which he received for the effective nommai: and
horse, which he was obligeti or allowed to maintain. The former corn- of
menced from the date of tfie certificate of his appointment; the latter this dignity.
from the date on which bis. horses were musteredl. The pay for both
was issued sometimes in money, and oftener by the assignrnent of land
in jageer. In either case the prescrib4:d officia1 forms were extremely
minute, and most scrupulously observed.
In the Company's provini:es there are no assignments in money, and
the present discussion relates only to those on land called jageer? A11
to the dufter of one of the four Bukshees; where it received the attestation, or
oficial mark of the mutsuddies. called Tusdeek. It was then presented a second
time to the Emperor; who signified his firial approbation by superscribing the
word be-debund, or 'let tliern grant it'. This superscriptionu-as sometimes written
by the Bukshees. upon receiving the royal order for that purpcise. The petition
being deposited in the dufter, :iyad dasht, or certificate, was issued, specifying
that on such a date, such a perscm was elevated to amunsub, ofso many thiiusand,
in the rissaleh of such a Buksliee. The abcive forms constituted a munsubdar."
"Descriptions of the horsemen attached to a munsubdar were taken in writing;
andthe horses were marlred with hot irons by an Oficer appointed for that purpose,
called the Darogbab Dagh Tusheebab, who acted under the orders of the Bukshees
at the presence."
"In order to obtain the necessary vouchers for granting an assignrnent for
the pay of the munsubdar, and his tabieen, or troops. an officer called the darogbab
urz rnokurrir presented a sewal, or petition. to the Emperor, representing that such
a person having been appointed to a munsub of so rnany thousand, and the tusdeek,
or original attested sewal oretition of the Bukshee, with the yaddasht or certifrcate,
having been deposited in the diifter, his Majesty's further orders respectiiig such
munsubdar were required. The Emperor then inscribed the letter swad, or mark of
approbation, on thetop of the sewal rnokurrir, signifyingthat the sewal, containing
the particulars relating to the rnunsub, had been presented a second time to his
Majesty, and returned with the signature of approbation.
If the Emperor directed that the munsubdar should be paid in money, no other
forms were requisjte. except the customary orders on the treasury. If the Emperor
signified his pleasure thatthe munsubdar should receive his payby an assignment
of land (which was denominated a jageer) the Bukshee notified his Majesty's
pleasure to the vizier, who accordingly issiied an okder to the dewan-i tun, to
prepare the necessary grants. Upon the receipt of this order, the dewan-i tun
drew out a sewal. or petition, which was transmitted, under an envelope, to the
Ernperor. who superscribed it with the lettir swad or mark of approbation.
It was then brought to the vizier, who signed on the back of it the letter ain,
and returned it to the dewan-i tun, who aclded the letter rneem; after which it
received the official marks of the mustsuddies of one of the four Bukshees, and
was deposited in the dufter. The dewan-i tun then drew up another sewal, or
petition, in which al1 the particulars relating to, the assignment were detailed.
If the amount of it was under'ninety thousand daums, the vizier had authority
to superscribe the sewal with the words Tunkba Denund, 'let them grant the
assignrnent'.
Ifit amounted to one lack of daums, the vizier presented the sewal to the Emperor
who superscribed it with the let.ter swad, urider whichthe vizier wrote the order
abovementioned. It then received the official marks of the dewan-i tun, and his
officers and was deposited in tlie dufter. III conforrnityto the above papers, a
perwannah was drawn out under the seal of the vizier, directed to the dewan of
the soubah in which the land ta be assigned was situated; specifying the rank of
the munsub, the cavalry attached to it, and the number of months for which
the assignment was granted; and directing. hirn,after putting the munsubdar 218 ANNEXES TO COUNTER-MEATORIAL (E NO. 1)
munsubdars were obliged to attend the Emperor whenever called upon;
sometimes they were bound to specific services. The dignity of munsub
was equally conferred upon the civil and military officers of the state,
who were supposed to be qualified for the duties of both stations, and
were hence called Sahib-i Syfe Kulum, or masters ofthe sword and pen."
Jageers,for "THE jageers were granted for the purpose of enabling the rnunsubdars
graatted. to appear with a çuitable retinue in the presence of their sovereign, or
to enable them to discharge the duties of the station assigned to them.
They were al1either actually employed or ready for service wlien called
Of two kinds.upon. Jageers were of two kinds, unconditional, and conditional. The
andondi'iOna' former werc conferred upon the munsubdars for their own maintenance,
conditional. and that of their retinue, and the effective troops attached to their
munsubs, and as the dignity itself was granted for life so were the funds
assigned for it l.It is not to be understood by an unconditional jageer
in possession. to transmit an account of al1 the particulars relating to the land to
the Royal Presence. When an assignment ivas granted to the dewan, the vizier's
perwannah was addressed to the nazim, as appears from a sunnud of Y Y T E sA M
KHAN now before me. In al1 other cases it appears to have been directed to the
dewan; and when the offices of nazim and dewan were for a short time united in
the person of s E RF R A u z KHAN, the vizier's penvanahs for jageer assignments
were addressed to him under the titles annexed to his latter capacity; and in the
, moolabik or provincial sunnud issued in conforrnity to the same penvannah, he
also appears in the character of nazim.
The dewan, upon receiving the penvannah of the vizier. presented a sewal or
petition to the nazim of the soubah, reciting the particulars of the assignment,
which the nazim superscribed with the words sunnud to debud 'let them grant
a sunnud'. Pursuant to this order the officersofthe dufter drew out an account
of the jumma or assessment of the Iandson which the assignment was to be granted,
as fixed by Torum. MUL, the dewan of AKBER, and a muchulka, or engagement.
was taken fram the jageerdar (which the dewan superscribed with the words
benuzzer deramud 'it has been seen') ;wherein he bound himself to treat the ryots
with kindness. and not to collect from them more than the established dewanny
dues: and also to pay into the public treasury whatever might be realized from the
Iands above the amount of the assessment.
The dewan then drew out a sunnud (which was called sunnud mootabik. or a
sunnud in conformity to the penvannah from the presence, under the seal of
the vizier) directed to the chowdries, canoongoes and cultivators of the district
in which the land granted in jageer was situated; acquainting them that a tunkha,
or assignment, for so many daums having been granted to such a rnunsubdar.
they were to account with him regularly for the established dewanny dues. It
also enjoined the jageerdar to treat the ryots with lenity; and not to exact from
thern any thing beyond the customary rents. At the end of the muttun, or body
of the sunnud, afterthe date, the nazim inscribed the byz, or mark of approbation;
and at the top the dewan affixed his seal. On the back of the sunnud was inserted
the perwannah of the vizier, the sewal or petition of the dewan of the soubah
to the nazim, and al1 the particulars of the assignment, witli its progress through
the various offices of the state; from that of the vizier, down to the lowest depart-
ment of the dufter of the dewan of the soubah. The original was then delivered
to the Jageerdar, who after, depositing a copy of it in the dewanny office, under
his own seal or that of his vakeel, proceeded to take possession of the land. The
sunnud to F u K H u R - O O- D E E N H O ç E I N,(Appendix No. z), is very com-
plete; and exhibits al1 the vouchers referrcd to in his note."
"It did not follow that any particular spot. once granted to a munsubdar,
was to be continued to him during life; nor even that he should invariably receive
his pay by an assignment on land. \men a munsubdar detached on service was
recalled, or sent to another province, he generally received his assignment on
lands not far distant from his new station. Sometimes the jageerdars were obIiged ANNEXES TO COUNTER-MEMORIAL (E NO. 1)
219
that the munsubdar was exempt from the performance of any service.
Al1 that is meant by this term is, that the retaining the munsub, and
the troops attached to it, did not depend upon his holding any particuIar
office.A conditional jageer was granted to the principal servants of the
crown in virtue of thejr olfices, such as the vizier, the bukshees, the
nazims, and their principal officers. The gant generally specifiedthe name
of the employment, and the number O€ troops to be maintained for the
exercise of it; andthe jageerdar was tci remain in possession of tlie land
assigrted in jageer under tliis form as long as he held the office. The
assignment had no relation to the Munsub-zaut, or personal rank of the
jageerdar, being exclusivelg allotted for the support of the troops
attached to his officia1 capacity. Upon the removal of these oficers,
their lands were usually trmsferred to their successors. Jageers could
only be conferrcd with the royal sanction: but when the power of the
Emperor declined, the nazims of the distant soubahs, who are originally
allowed only to recommend munsubs, usurped the privilege of granting
jageers, both conditional and unconditionai. This act was so avowedly
derogatory to theauthori ty ofthe Emperor, thatan evasion was practised
to conceal it. The sunnud for the jageer was prepared by the dewan of
the soubah, in which the lands assigned were situated, and attested by
the seal and the signature of the nazirn. His authority for issuing this
grant was a perwannah from the vizier, in consequence of his Majesty's
previous sanction;and hence thisgrant has obtained the name of sunnud
mootabik, or grant in conformity to the order from the presence, under
the seal of the vizier."
THIS sunnud is the found;lition of al1the rights and privileges annexed
to a jageer, and it is therefore necessar-y to consider it with attention. to
Al1 jageeree sunnuds consist of two parts; the body which is properly sunnuds for
the grant; and the endorsement. The former is general, stating that an Iageers.
assignment of a certain spttcified amount has been graiited to such a
person, from a certain date, and refers to the endorsement for the par-
ticulars, which are fully detailed there. The particulars which require $$iuF$Uire
notice, are the following. 1st. The rank of the munsubdar; and the pay speciai notice.
annexed thereto. 2nd. The nurnber of effective horse allowed hirn; and
the pay thereof. 3rd. The amount of the assignment in daums, or in
rupees on a proportionate valuation th1:reof. 4th. The number of rnonths
for which the assignment was granted.
First. The rank of the rniinsubdars, and pay annexed thereto. It has
been already observed that the rank of a munsubdar was constituted 1st.particuiars
by the number of horse which he was supposed to command. But in ~~~,Bfd~~
each rank there were threr: degrees, according to which his pay was and Pay
reguIated. Thus it did not EollowtIiat every munçubdar of the rank of thereto.
to receive their pain money, and those who were paid in money obtained assign-
ments on land. ln the I~ook caIled the Insbai Aulumgeeree, there are various
drafts of grants, both for converting money assignments into jageers, and the latter
into the former;a proof tbat no perpetual occiipancy of lawas conveyed under
this tenure.
And from the sunnud of Fu r:H u R- OO-D EB N H O s E IN it further appears,
that his father relinquishea considerable part of his jageers during his own life
in favour of his son, for whose pay no furids had been provided;the whole of
the lands in the soubai;. set apart for assigriments having been previously appro-
priated. The father of F KH u R- OO- D E EN H O sE I N received an assignment
in another province for the lanthus made over to his son."1000 received equal pay . This depended upon the degree of that rank
in which he stood; and that degree again upon the number of effective
horse which he was allowed. If the number of them was equal to the
amount of his munsub. he was of the first degree . If less than that num-
ber. and more than half. of the second degree . If less than half. of the
third . These distinctions applied only to rnunsubs of. and under. the
rank of five thousand . According to these distinctions. the pay of a
munsubdar of one thousand. if of the first degree. would be 20.00. 000
daums; if of the second. 19.00.ooo. and if of the third. xS.00.ooo only .
.4 table of the pay of the munsubdars. for their persona1 rank. is inserted
in the appendix l. which will point out that annexed to each rank.
and its three degrees . It may also be verified by a reference to the grant
to FUKHUR-00-DEEN HOSEIN . The rank of his munsub is specified ai
two thousand; and the effective horse allowed him 500 . By the rules
laid down. he is in the third degree of the rank of zooo; and his pay is
regulated accordingly. viz .
1 The table here referred to isentitled Pay of the munsubdars fortwelve months.
in daunts. for their munsub zaut. or personnel rank; and contains the following
specification :
Rank of the 3lunsubs in daums First Second Third
degree degree degree
Twenty ............ 40.000 30.000
Thirty ............ 35.000
55.O00 50.ooo 45.000
Forty ............. 70. 000 65.000 Go.ooo
Fifty ............. 85.000 80.000 75.000
Sixty ............. 1,00.000 95.000 go.O00
Eighty ............ I.40.ooo 1.30.000 1.20.O00
One hundred .......... 2.00,000 I.80.000 1.60.000
One hundred and fifty ...... 2.50,OOO 2,30.000 2.10.O00
Two hundred ......... 3.00. 000 2.80.000 2.60.000
Two hundred and fifty ..... 3,50.000 3.30.000 3.10.000
Three hundred ......... 4,oo.ooo 3.60,ooo 3.60.000
Three hundred and fifty ..... 4.50. O00 4,30.000 4.10.000
Four hundred ......... ~.00,000 4.80.000 4.60.000
Five hundred ......... 8.oo.000 7.00.000
Six hundred .......... 9.00.O00 8.50.000
Seven hundred ......... 9.50,OOO 10.00.000
1 1.00.O00 10.go.O00
Eight hundred ......... 12.50. O00 12.00.000 11050.
Nine hundred ......... 15,OO.OOO 14.50.000 14.00.000
Onethousand ......... 20,00.000 19.00.000 18.00.000
One thousand and five hundred . 30.00. 000 27,w.ooo 24.00.000
Tw-Othousand ......... 40.00. 000 37.00.000 34.00,Ow
Two thousand and five hundred . 50.00.000 47.00.000 44,OO.OOO
Three thousand ........ 60,oo.ooo 57.00.000 54.00.000
Three thousand and five hundred . 70.00. 000 67.00,ooo 64,oo.ooo
Four thousand ......... 80,oo.ooo 77.00.000 74.00.000
Four thousand and five hundred . go.00. O00 87.00.000 84.00,ooo
Five thousand ......... 1.00,00,000 97.00.000 94,OO.OOO
Six thousand ......... 1.20.00,000
Seven thousand ........ 1,~0,00.000
Eight thousand ........
1.60.00.ooo
Nine thousand ......... 1.80.00.ooo
Ten thousand ......... 5.00.00. O00 ANNEXES TO COUNTER-hlEb1ORIAL (E NO. 1) 221
Amount assigned-by the table for the pay of a munsubdar,
in the third degree of the rank of zoo0 daums, .....
34,oo,ooo
Add 500 effective horse, at 8000 daums for each per annum, 40,00,000
Total in daums of the jageer assigned according to the ----
established ruleç of the Ernpire ............ 74,000,oo
Secondly. The number of effective horse allowed him. This was entirely Secondly. The
unconnected with the number which fixed the rank of the rnunsub; "~eoh,,,,
although it ascertained tht: degree of it, and on this account, in the atlowed.
revision of jageer sunnuds, is particularly worthy of attention. The pay
assigned for each horsernan was at the rate of 8000 daums for twelve
months; but the actual sums received by the jageerdars bore but a Irery
small proportion to these allowances; which were Iittle more than
nominal; and hence it was that the munsubdars were not obliged to
rnuster above a certain proportion of their effective troops; beyond
which the nurnber was nominal only.
Thirdly. The amount of the assignnient in daums. The daum was an Thirdly.
imaginary coin, at the rate of forty to a rupee. But in paying the troops &$p",",!,!,\,$p
this imaginary coin was valued according to the number of months for daums.
which the assignment was granted, and was in fact much below the
generai computed rate.
Fourthly. The number of months for which the assignmerlt was Fourthlu.
issued. This is a very material point, aç the value of the jageer, or ~~~~r~~
assignment, greatly depended upon it. The munsubdars, and their ~S,i'&; hase,~
effective troops, never received abow: eight or nine months pay; and i,,,d.
often only three. About five months was the medium. This will appear
from a cornparison of the daums granted in the sunnudç anil their
valuation in rupees. A tabIe isannexed for the purpose of exhibiting
the actual value of a lack cifdaums, lbya rule of proportion forined on
the number of rnonths for which the assignment was drawn out l. This
calculation was made by the dewan, as the perwannah of the Vizier
only specified gcnerally the amount of the daurns, according to the
established rates of the empire; and the number of months for which
the assignment was granted.
"FROM the preceding explanation a jageer may be defined to be, an Definitionof a
assignment in land or moriey, for the support of a certain dignil.~, and $,~;e,~~~~
for the troops annexed thereto. That it was either conditional or uncon- expianation.
ditional. The former implied, that it \vas granted for the expenseç of a
1 The foliowing is the table here referreto.
Account to show the value of daurnsatisigned by jugeer, in proportion to the
nuWhen the assignment whwas for twelve rnorlths, one lack of daumwas estimated
at, ... Rs. As. Gs.
............ 2.500 O u
II. ditto .......... .ditto .......... 2,291 10 6
IO. ditto ........... ditto .......... 2,083 5 3
g. ditto .......... .ditto .......... 1,875 0 0
8. ditto .......... .ditto .......... 1,666 IO b
7. ditto .......... .ditto .......... 1,438 5 3
6. ditto ......... ..ditto .......... 1,250 O O
4. ditto ........... .ditto .......... 1,833 I5 3
3. ditto ........... ditto .......... 625 O I 222 AXKEXES TO COUNTER-hfEh1ORIAL (E NO. 1)
particular office or station; the latter, that it was independentof any
office or station, being appropriated for the maintenance of a dignity,
a suitable number of attendants, and the effective troops annexed to it.
In the latter case,it was granted for life, or until the Emperor should
please to resume the dignity, or diminish it. In the former case, it
existed whilst the possessor continued in ofice only; and upon his
removal or dismission, devolved, either inwhole or in part, upon his
successor. The services required from the jageerdars were either specific,
or they were bound to the performance of whatever duties might be
assigned to them, and tu attend in person with their effective troops,
whenever required. The actual value of a jageer depended, first, upon
the degree of the rank of the munsubdar ; and secondIy, upon thenumber
of months for which the assignment was granted. These considerations
will suggest the mles to be observed in the revision of the sunnuds;
but it is first necessary to explain the restrictions, by which a munsubdar,
in possession of a jageer, was prevented from receiving more than he
was entitled to."
Jageerdarheld "As an equivalent for the pay which a munsubdar was entitled to
~~g,"~fe receif~,either on account of his persona1 allowance, or that of the troops
receivefrorn under him, he received possession of certain lands, the rent of whicwas
the rents thecalculated in daums, according to the assessrnent oTOORUM NUL .f they
'Ondsassignedwere found to produce more than the jageerdar was entitled to, he was
obliged to account for the overplus, under the denomination of towfeer,
or excess. This obligation extended also toany arrears of the rents of the
lands assigned in jageer, for the time which had elapsed previous to his
acquiring possession; or to any anticipation of rents, in case of his dis-
mission, previous to that period. And secondly, a proportion was deduc-
ted from the amount of the assignment for any deficiency in the number
of effective troops which he was obliged to maintain. It was often usual,
in assignments of any considerable arnount, tosuspend a pa.rt thereof,
until the accounts of the munsubdar had been adjusted. To render these
restrictions more binding, a jageerdar was obliged to sign an obligation,
previous to the receipt of his gant, making himself accountable for
whatever might be due on the above grounds. The following instance, in
proof of tlie strictness with which the Government exacted the towfeer,
is so remarkable, that 1 shall insert itat length from a book of good
authority l.
BUXKUND Z HAK,and other munsubdar, having obtained an assign-
ment for their pay in the pergunnah Beranee, they laid daim to the
possession of the whole district, as the amount of the rents of it in
daums corresponded exactly with that specified in the vizier's assign-
ment. The dewan refused his assent, and insisted upon their receiving
their pay in money which compelled the munsubdars to accept the
assignments according to the establislied rules, and these left them no
portion of the towfeer. By this adjustment, the Government was saved
from a loss of1,og,791rupees, being the excess of the rents of the district,
beyond the valuation of TOORUNMUL.If therefore a revision of the
sunnuds should take place, the following points must be attended to.
First, the authenticity ofthe perwannah from the vizier: secondIy, the
1 A Dustoor-001-arnul; or book of regulations and forms; wrintthe Fusty
year 1137, by AN u N D R A M, Nooskhan-novees in the dewany dufter of Alla-
habad. ANNEXES TO COUNTER-BIEMORIAL (E NO. 1) 223
number of months pay granted in the assignment : and lastly, the diffe-
rence between this sum and the actual produce of the lands."
"UNDERthe Moghul Gimernment there was a certain mehal, or Description of
jztrisdictioconsisting of such lands as were set apart for being granted mehal undere
in jageer, under the denomination of Paibakee. The other lands in the the Moghui
Soobah were called Khalsah Mokurrery, or fixed exchequer lands: these Government.
were supposed to be rnost productive, and were never granted in jageer.
Under this jurisdiction; jageers, when resumed, or escheated, fell; and
here the towfeer, or excess, was brought to the credit of the state; as
weil as the amount of arrears, or anticipations,for broken periods, as
already explained. The produce of the three last articles was called the 1t
share of the Exchequer; and under this term the jageerdars were corn-
pelled to account for it. Such were the ancient and regular forms of the that thet bas
Maghul constitution regarding the clignity called munsub; and its ~~f~~fi$$f
appendage jageer; and from these it will appear that a jageerdar had DrqDertYinthe
not originally, or constitutionally, any right or property in the lands. assigned lands.
IN BENGAL there are feu?jageers, and of no considerable amount : but What iaandrin
in Behar they exist to the annual value of near four lacks of Kupeeç,
according to the estimate upon which they were made over to the When obtained
jageerdars. Four-fifths of these grants were obtained during the anarchy in Behar.
of the reign ofSHAM ALUM' Srnrnediate predecessor ; and at the commen- ~,d grant of
cernent of his accession, when he invaded Behar. Under such circum- them how for
stances, we are not to expect rnuch attention to the forms, or to the
spirit,of the constitution; and on examining several of those grants, it
appears that most of them contain nothing more than a simple asçign-
ment of daums, without any specification of the rank of the rnunsubdars
number of horse he was bound to entertain; or months for which he
received pay; or whether the gant was conditional, or unconditional;
nor the customary engagement to pay into the KhaIsa the excess; or
arnount resulting from anticipated rents, or arrears of a broken season.
Of eight grants which have been revised, two only specify any services
to be performed. By a cornparison however of the number of daunis
assigned, with the amount of the revenue lands delivered over to the
jageerdar, most of the assignments will appear to be for four or five
months, as in Bengal and elsewhere; and from the evidence of the oldest
and most intelligent officers, itppears that, until the end of BEHADUR
SHAH'Sreign, the reguIar forms were observed, and the acccounts of the
munsubdars examined with the usual si:verity. From these circumstances
itis concluded, that the lands in Behar, assigned bjr the jageeree grsnt,
were held under the same tenure as in other parts of the empire. It is
also probable thüt mnny of the grants in Behar were fraudulently or
surreptitiously obtained." ANSEXES TO COUNTER-MEBIORIAL (E NO. 1)
On the nature I. In submitting for the consideration and orders of the Governor
and originof General in Council the accompanying letter from the Secretary to the
Grantsam Government of Bombay and its .enclosures relating to the Saranjams of
riarticularIy the Dekhan the Secretary beg to leave to offer the following remarks.
COtthose ofnce
Dekhan. 2. The Saranjams of the Dekhan like the Jageers of Hindustan are to
be understood as lands the public revenue of which is granted by the
Sovereign in lieu of a money payment for persona1 service or the service
of troops to the state and frequently amounting in vaIue to somewhat
more than an estimated equivalent of the service required from the holder
the surplus being granted as a favour without equivalent.
3.These tenures being in their nature persona1 were not under any of
the former Governments of India regarded as hereditary, any more than
the service in lieu of which they were originally granted was itself
considered hereditary.
4. But there has always been found a disposition in this country to
confirm with some modification to the Son the ofice held by his father
and many of the most important ministerial officers under the Native
Governments both Hindoo and Mohamedan have continued hereditary
for some generations. In like manner Jageerdars or Chiefs holding lands
on military service looked forward to their Sons succeeding thcm, and
as this expectation was a stimulus to their loyalty and devotion to the
prince they served, it was encouraged, and the son not unfrequently
succeeded to the comrnand and to the emoluments that were enjoyed by
his father.
5. But though this dccured not unfrequently the confirmation was
always considered as an act of grace and favor-it would not have been
demanded as a nght and the modern date ofalmost al1the grants of this
description may be adduced as a sufficient proof that the practice waç
not universal nor indeed generally followed. Forthe former Covernments
of India whether Hindoo or Mohamedan considered grants of this de-
scription as resumable at pleasure; and the sunnuds by which they were
conferred, we rareiy ifever meet with an expression guaranteeing their
continuance for one or more lives or for any specified period of time.
They were regarded rather as a temporary assignment in lieu oi wages
in money in the Government revenue in a certain villa e or district,
than as a permanent alienation either of land or revenue.6tVhether they
were confirmed to the Son on his father's death, depended entirely on
favor or political expediency and it rested in the same considerations
at al1tirnes, how long they were continued and when they were resumed.
6. In a Minute by Sir T. Monro dated 15th March 1822 is found the
foIlowing sentence, "the Commissioner at Poonah in answer to a reference
made to him on the subject, has statcd that he has not been able to
find a single Altamgha in the Dekhan and has transmitted a Iist of
five hundred and fifty nine Jageers resumed by the Peeshwah's Govern- AKPU'EXES TO COUNTER-MELIORIAL (E NO. 1) 225
ment within the last fifty years none oliwhich are altamgha; of these, he
observed, three hundred and sixty four were resumed for reason assigned,
usually offencesagainst the state, and onehundred and ninety fivewithout
any reason assigned. In the Nizam's dominions, too, the resumption of
Jageers appears from the note of his mjnister Chundoo La11transmitted
by the Resident to have been regulated as in Carnatic by the will of the
prince." The same would no doubt be the result of sirnilar enquiries in
the States of al1other riative Princes and independant Chiefs.
7. It may safely be assiimed that prior to the estabIishment {ifthe
British rule, no notion had ever been entertained of hereditary rights
in the holders of these grants and it is only necessary to refer to any of
the existing Native States of the present day to learn that no such
principal or practice are still known there.
8. In the Mahrattha principahty of Sindiah, Jageers are constantly
taken from one and bestowed upon anctther as partiality or expediency
dictate. Even in the Rajpoot States, the Thakoors, though holding by
a far superior tenure to that of ordinary jageers, are liable to be dis-
possessed and to see their ISstates confiscated or conferred on others.
And everywhere throughout India will it be found the practice of Native
Governmentç to consider land tenures of this nature resumable at the
pleasure of the prince who conferred them, or of his successor. It is
perfectly certain moreover that in fornier times when one dynasty has
been subverted by another, the conquering power paid little or no
attentionto the grants of its predecessors; in the papers now submitted
not a single case occurred of a jageer granted by the predecessors of the
Peishwahs; and had the Peishwah's rlominions fallen into the hands
of the Nizarn or Hyder Allee or any Hindoo conqueror no consideration
would have been shown to the ancient jageerdars beyond what policy
dictated or rnoney could purchase. And their resumptions of such tenures
would not have been regarded as rapacity or usurpation but would have
been considered as the natural and almost inevitable result of the change
of dynasty. It need not be argued that the British Government should
on its acquisition of a new territory, have acted in every instance a
similar part. No fault can be found witli a more liberaI conduct towards
families of consideration and influence to conciliate them, arid to
prevent as far as possible the discontei~t which always attends sudden
loss of property. But it may be safely assumed that in whatever degree
the British Government has seen fit without an adequate motive to
render the position of that dass, which enjoys affluence or competency
without contributing any thing to the general resources, more perma-
nently secure in the enjoyment of perquisites and pnvileges and to confer
on them rights which they did not Fiossess under the princes who
raised them to fortune and distinction, so far the Government has been
in error. The acknowledgment of any ctfthe Jageerdars of the Dekhan
as hereditary proprietors of 1:heirJageei-s is a measure that would never
have been admitted by Rajei: Kao or ariy of his predecessors. And what
interest can the British Government havein the case of these individuals,
unless when they have personally done it service that deserves requital
to induce it to bestow upon them more than their original patrons
conferred, or ever would have conferred upon them. Giving tl-iernhere-
ditary rights in tenures which were before only temporary is certainly
doing this. And it is a mistake which has often been committed by
I6226 ANNEXES TO COUNTER-MEMORIAL (E NO. 1)
British Officers in other places. There are several provinces in India
where the first Sunnuds granted by the British Government in confir-
mation of former Sunnuds have made Jageers and other service grants
perpetual, and a large alienation of revenue will be the consequence for-
ever. And it should be remembered that in the South of India where
terms were used in Sunnuds implying hereditary right in a grant, such
terms were regarded by Native Government and by the people themselves.
as of littlor no validity [see Sir T. hlunro's minute quoted above] where-
as under the British Government such terms give a solemn guarantee for-
ever unless where the grant rnay be fortified by rebellion or other offence
against the State. The value of the lands held by the Jageerdars of the
Dekhan is comparatively trifling but the principles on which their
rights and those of the Government shouId be considered are thc same
as those alluded to and it is of essential consequence that the highest
authorities in sanctioning rules for the future disposa1of these properties,
should not assume the existence of rights which in the laws and practice.
of country have no existence.
g. The good policy of preserving a middle and upper class of society
such as landed properties of different grades exempt from payment of'
revenue to the State has often been adduced as a reason for maintaining,
though at a pecuniary loss to ourselves, the petty Chieftains and Jageer-
dars of India. But much doubt may be entertained of the soundness of.
this argument and if it possess any weight, if it is essential to the content-
ment of our subjects and to the influence of the Government over them
that there should be men of weight and property to advise and guide.
them. Itis clear thatthe Government should not have relied on the good
will and exertions of the relations or favorites and protege's of the
Prince whose power we subverted, the Jageerdars of their creation,
but should have allotted to them a suitable provision and replaced them.
by our own immediate adherents who, and their successors after them
might have looked up to the British Government as the sole origin from
which they derived al1 that they enjoy. Any of the disaffection which
may prevail, almost al1 the insurrections against our authority which
have occurred will be found not so much in those territories where we.
have left the least of power, wealth, and influence in the hands of former
petty Chiefs and Jageerdars but chiefly where we have been most liberal
in foregoing the rights of conquerors and sovereigns in order to conciliate
them. Nor can it be said that the concessions made to this cIass have
generally rendered them a blessing to the people by tlieir superior.
intelligence and by the rights of moral example to their inferiors.
Unfortunately they are distinguished for the most part only by their-
rapacity, their indolence and their extravagance, and by the discontent
which they not uncornmonly feel and express towards the present
order of things. The Government does not find it necessary to spread
its armies over the face of those provinces, the territories of which it
most exclusively retains, and where the possessions of petty chiefs and
jageerdars are rare and insignificant. Its great Military Strength is
developed in those quarters where these classes have by its Iiberality.
been left in the enjoyment of what they had usurped or what had been
bestowed upon them under former Governments. No permanent feeling.
of gratitude is to be expectedin the classes thus favored, they can never
be reIied upon as a source of strength to the Government andthe amount. ANNEXES TO COUNTER-MEMORIAL (E NO. 1) 227
of their incomes is so much sacnficed to the general resources of the
Empire.
IO. There has been a revolution produced in the feelings and in the
very order of society in Iridia by its falling under the Governxnent of
England which wel1deserves notice in the consideration of this question.
Under Native princes temporary alieiiations of the revenue wert: neces-
sary, because they were the mode by which their amies were supported
and their Civil Establishments were chiefly paid. It was the manner in
which they rewarded merit or services and provided for their relations
and favourites. These were the persons that with the exceptiori of the
priesthood engrossed al1the power and rank and riches of the Country.
They were necessary to the splendor cifthe Court, and they maintained
and led the Military force rcquired for the defence of the State. Al1other
classes were neglected and left to their mercy and they esercised in their
own small circles a power ;~lmostas absolute as that of their Sovereign
and in the rapid change of dynasties. which formerly occurred and in
frequent and sudden acquisition of power and station by Military and
other adventures, they had objects of excitement which might be of
service to their sovereign or might holcl out the highest prospects to their
own ambition. Under the British Governrnent al1 this is cllangeci. Our
Civil and Military officers are taken from another class and are paid
regularly out of the public treasury without having any tenure of land
or any power except that which belongs to their Officers, over the mass
of the people. In the eye of the law as far as persona1 rights are co~icerned
al1are considered equai and the little feudal lords, the Jageerdars of the
former regime, are out of place in the present system. They are apt to be
disloyal and malcontent because theri: is no longer any scope for their
ambition and because they are aUowr:d to exercise no arbitrary power
over their dependants or any of their fellow subjects. They submit
, reluctantly to the equal administration of justice which is the most
striking characteristic of British rule and are indignant at being sum-
moned to the Adawlut. They have no feelings in comnion either with
the Government above them or with the mass of the people below them,
and they never can become the connecting link between the rulers and
their subjects in which position such a class might be of incalculable
advantage to al1parties.
II. The confinnation of a large portion of the landed tenures of these
rent free holders has debarred the Government even if it had seen the
policy of such a measure from raising up new families to wealth and
distinction, for the state of the finances would at no time have admitted
of Our both maintaining tlie old and raising up a new body of sharers
in the produce of the Country. The only classes which have greatly
raised themselves in the scale of Socie1.yduring the British rule in India
are those who have amassed fortunes from mercantile speculation, many
of these classes have become opulent and influential. They are generally
speaking intelligent and respectable, and they are good subjects because
their interests are identifiecl with the permanence and the prosperity of
the present Government. Of late years also there has been a great
stimulus afforded to the honourable though moderate ambition of a
numerous and important body of oiir subjects the employee of the
Government. Means have been taken and are every day improving to
raise the standard of inteltectual attainments among the middle and228 XKNEXES TO COUNTER-DIEMORIAL (E NO. 1)
upper classes of the people in order to fit them for the discharge of high
and responsible duties in the Civil Governmeiit of the Country. They
have already been admitted to a large share in the judicial and revenue
administration and their cmolumentshave been placed on such a footing
as toafford them an honorable cornpetence adequate to the high position
wliich they hold in society. This class ofour subjects rnust become if it
is not so already, far more influential than that of pensioners and Jageer-
dars, and the inAuence of tlie former is far more likely than that of the
latter to be exerted in favor of the existing order of things for they have
greater intelligence, are imbued with better principles, and have a direct
interest in the stability and success of the Government which has created
and maintains them,
12. They and the wealthy commercial families, would under the
present system have naturally filled the place occupied by the Jageerdars
and others of the same class under the Native Governments but we have
allowed the drones to keep possession of the hive, and the resources of
the State are thereby too much straitened to admit of Government
doing al1that it might wish in rewarding those of its native servants who
have shown the greatest loyalty and devotion in its cause or who have
most distinguished themselves in the discharge of important duties to
their country or the Government and, by thus raising to stillgreater
influence than they already possess,its own native servants and clepen-
dants.
13. That they are intrinsically superior to the favored servants and
adherents of the former rulers and that politically considered tiiey are of
more weight in society and deserve to be more regarded by the Govern-
ment cannot admit of a doubt. But iii weighing the importance to the
Government of any class as holding a position in Society between it and
the greater body of its subjects, it must be allowed that their power for
good or evilis confined within a small compass. Their influence over the
mass of the people will in times of excitement be as nothing compared to
that of the priesthood whether Hindoo or Mahomedan-and on this
account there was the less necessity on our obtaining the Government of
the Country for the sacrifice that we made in order to maintain in their
places the influential families which we found in the enjoyment of lands
and other sources of emolument. For there can be little justice or expe-
diency in lavishing on those who have no claim upon the present Govern-
ment, or upon thecountry, a permanent share in its resourceswhich they
have not earned, simply because they were in the employ or enjoyed the
favor of a former prince. Yet it cannot be denied that the authorities in
this Country have too often been misled in recognising in the grants of
former rulers a vested interest in the grants which it was beyond the
competency of the Government justly to set aside, and they have been
actuated by a natural aversion to consigning to poverty or want those
whorn they found in the enjoyment of affluence; and as far as admitting
in favor of these grantees a life interest in what they held, there may
often have been good policy in the measure. But the concession should
except in particular cases have stopped there. And this seems to have
been the course which the Government of Bombay has followed in the
case of some of the Jageerdars and most of the pensioners of the Dekhan,
and it is in consequence of their having done so that the papers now
submitted require, under the order of the Hon'ble Court, the deliberate AN-JEXES TO COUNTER-I\~IE310RIA~~ (E NO. 1) 229
consideration of the Government of India, with a view to decide whether
certain resumed Jageers should be restored to the heirs of their former
holders.
14. It is shown in these papers that the oldest of the gants under
which any of their Jageerdars held his lands is subsequent to the estab-
lishment of the Peishwahs in 1714.Kone of them, therefore, fa11within
that class of Jageers which the Hon'ble Court propose to consider as
hereditary in the fullest sense of the mord. They have no pretensions to
great antiquity,and they prove, moreover, what has been before alluded
to that in the course of the reigns of'the Peishwahs, the wholt: of the
Jageers which may have been granted by the King of Delhi or the Raja
of Satara have been so com~~letelyresumed that not one ofthem remained
in existence at the termination of the Peishwahs dynasty. It is there-
fore unnecessary to discuss how far it would be expedient or according to
the law and custom of the country to have perpetuated by a solemn
Act of the Government such more ancient Jageers; and to assist the
Government in deteminiilg how the more modern ones shoiild be
treated, the former correspondencc on the subject lias been consulted
from the year 1819 to the present da.y.
15. In Mr. Elphinstone'ç report of the 25th October 1819 alluding to
these Jageerdars he says:
"Al1 were left in possession except such as were granted as late as
Bajee Rao's time to whom pecuniary pensions were assigned.
Al1Jageers held by ancient and great families were recomrnended to
be hereditary (but no communication has been made on this subject to
the holders)."
16. From the above passage it is clear that the term "hereditary"
inserted in the last columrl of the statement of Jageerdars of t.he first
Class which accompanied 1:heletter, irnplies no more than that: it was
proposed to consider them as hereditary and this in some instances only
in a qualified sense of the word, as il is added in some cases, that the
gant may be diminished on the holder's death and the proposa1 to
consider certain of the Jageers hereditary was never promulgated or
made known to the Jageerdars and uras never acted upon.
17.On the contrary, the Supreme Government on receiving the state-
ments submitted with Mr. Elphinstone's letter of the 25 October 1819
expressed a strong aversion to declaring these grarits hereditary. Imay
be useful for the purpose of showing the sentiments at that time of the
Supreme Government in this point, to quote largeIy from the letter
written from this department on tlie 4th March 1820, in rc:ply to
Mr. Elphinstone's report orithis subject-
"Since that period, alluding to the instructions of Government, dated
September 26th 1818, however.,a considerable diminution has taken place
in the hopes then formed of an efficient revenue from the conquered
country applicable to the general service of the state.From the latest
calculations received it nciw appears that, considering the ostensible
magnitude of the conquest, the aid to be derived from it to our resour-
ces is likely in cornparison to be scaiity and imperfect or at any rate
much inferior to what was at firsexpected.
"This consideration makes the Governor General in Council anxious
that the alienations of public revenue either in Jageers, Pensions or230 ANNEXES TO COUNTER-MEMORIAL (E NO. Ij
other grants, should be limited as much as possible as to the number,
amount and duration.
"1 am therefore directed to convey to you his Lordship's request that
the Hon'ble the Governor in Council will be pleased to revise the list
transmitted in the despatches now acknowledged, with a view to the
reduction if practicable of the expense which they menace.
"It is for several reasons inexpedient that this revision should be
attempted here, and the Governor General in Council is satisfied that it
can only be accomplished satisfactorily by the Hon'ble Governor in
Council.
"1am consequently instructed to confine my communication to a few
observations.
"Where the fait11 of Government is pledged by the promise of the
Hon'ble the late Commissioner, it is not of course the wish of the Gover-
nor General in Council that any infraction of that promise should take
place.
"Where it is deemed essential by the Hon'bIe the Governor in Council
for the tranquility of the Country, or on other important grounds of
political expediency that the grant proposed shouId take effect, the
Governor General in Council will rest with entire confidence on his
judgment.
"But His Lordship trusts that cases may be found in which neither
good faith will be violated nor the tranquility of the Country endangered
nor essential plans of policy frustrated by reduction".
"With reference to those grants which it is proposed to make here-
ditary, the Governor General in Council doubts the policy of making
any gant hereditary which may justly be put on the footing of life
grants. By keeping thern as life grants Government is by no means
excluded from the power of renewing them, if it should be deerned
expedient to do so, and every renewal will be a fresh act of grace con-
ferred on the individual receiving it. But by now declaring those grants
to be hereditary Government ~wuld be precluded both from resurning
its rights when it might be necessary to do sa, and conferring favors on
the descendants of the present grantees and wouId thus be cleprived
of a probable source of future improvernent in revenue and every other
branch of Civil Administration, as well as the means of winning attach-
ments by personal obligation."
18. If this cautious mode of procedure was wise and necessary in
1820 when uninterrupted peace prevailed throughout India, and when
the general finances of the Country were in a flouriçhing and improving
condition, there is nothing in the present state of affairs that does not
render it expedient to continue in the sarne course of endeavour by al1
fair means to diminish those useless drains on the resources and invar-
iably to avoid making them permanent.
19. And in reply to the instructions of the Supreme Government, the
Government of Bombay over which Mr. Elphinstone then presided
stated on the 11th of May 1820 as folIows:
"No grant of any description has been declared hereditary, the dis-
tinction in the list of Jageers transrnitted to the Supreme Government
into hereditary and for life being intended asasuggestion for the future
regulation of Government ; but having in no instance been communicated
to the party concerned. ANNEXES TO COUNTER-MEMORIAL (E NO. 1) 231
"The Governor in Council is of opinion that the grants market1 here-
,ditary should be continued to the heirs of the present occupants, but he
.entirely concurs with His Excellency- the Most Noble the Governor
General in Council in respect to the expedience of renewing the grants
.on the death of each incumbent. Government will indeed be at libertyof
exerciçe its discretion in gi-anting or withholding the renewal on that
occasion excepting the case of what are termed Padshahee grants which
the Governor in Counçil coriceives ought in al1cases tobe renewed and
of the more ancient grants by the Rajas of Satara which should be treated
with similar atte~ition."
"Before concluding this Ietter the Governor in Council thinks it
necessary to remark that the arnount of the Jageers and pensions will
soon be diminished by the death of the present incumhents, many of
whom are men advanced in life; the number that has fallen in already
is for this reason considerably above what might have been expt:cted."
20. From these extracts it is clear that Mr. Elphinsto~le was not dis-
posed to consider any of the rants which he had sanctioned as perpetual,
except those terrned Padsha 7e, or those ofancient date from the Rajas
of Satara, and though the propriety of admitting any Jageer or service
grants from whatever source:proceeding to heregarded as perpetualalien-
ations from the revenues of the Couritry must admit of question, yet
as it appears from the tables formed from the records of the Peishwah's
Dufter and from the subsequent inves1:igation of Mr. Marriott and from
the present statements of Mr. MilIs,that none of the Jageers now under
consideration are of that description,and that al1apparently date their
origin from the time of the Peishwahs, that point need not be brought
in discussion on this occasion.
21. It was stated by the Government of Bombay in their letter of
May le th,1820, in reply to a requisiticin from the Supreme Government
for more full particulars of the alienations of revenue in the territories
conquered frorn the Peishwah that the Collectors were then engaged
in the investigation the result of which would probably show a consider-
able reduction in the total amount of allowances of tliis description.
Eut it does not appear that this work was prosecuted with vigor, and
no reports on the subject carne before the Supreme Governmelit aç far
as the recordsof thisOfficeshow till the year 1830. From that year when
the subject came under the considera1:ion of the finance committee till
1834, there was a constant correspondei~ce between the tu70Goveriiments
regarding the Jageers and pensions of 1:heDekhan and in the latter year
Mr. Marriott's report and tables were submitted, the Hon'bIe Court
observations on which are the present subject of consideration.
22. But it will be proper to notice as closely connected with the
subject of ihis paper that the Hon'blt: Court in their reply of the 20th
of Auguçt 1804 to the despatches of this Government, transmitting lists
furnished by the Governmeiit of Bombay of the Poona Pensioners, were
pleased to approve of the proceedings of that Government respecting
them.
23. Those proceedings were as follows. The pensioners were divided
into four classes, first pensionsranted to the representative of ancient
families, which itis considered desirable to maintain in respectability or
preserve from too sudden downfall; second pensions granted to persons ANNEXES TO COUHTEK-MEMORIAL (E XO. 1)
232
in powes or high employment or in the enjoyment of influence at the
time of the conquest, and whom it was considered desirable to conciliate;
third pensions granted for services rendered to the British Government
by persons not in the service; fourth pensions granted to servants of the
British Government persons on the establishment of the Poona Residency
and others.
24. The mode of disposa1of these pensions after the pensioners' death,
was, that they should be generally discontinued and where it was neces-
sary to make provision for families of deceased pensioners, the following
rates should on no account be exceeded for the first class,one half to
the next generation, and one fourth to the third generation when the
pension is to terminate. For the second class in special and rare cases,
one third to the next generation only. For the third and fourth classes
in special cases, not exceeding in number one tenth of the whole, one
third of the original pension to the next generation only.
25. The entire amount of the pensions included inthese Classes was
Rupees 3,28,32 a7d the arnount to be continued under these rates to
the next generation was Rupees 32,31 6r about one tenth of the amount
of the original pension.
26. But though the Hon'ble Court approved the proceedings, they
expressed an opinion that, in cases where the pensioners had been granted
in lieu of territorial sights, it would be proper in dealing with them to be
guided by the same consideration as in the case of Jageers. And there can
be no doubt that the two are closely allied andthat similar rules should
be followed in disposing of both. The two first Classes of pensioners
comprise the same description of persons as the higher Jageers, some
names are found in both lists of persons holding both land and money
pensions and there can be no doubt that, under the Governrnent from
which the grants proceeded, the tenure of both was considered nearly
equally good and valid. But the manner in which these two kinds of
grants have been treated by the British Government is strikingly dif-
ferent. The Jageerdar of the most favored Class is almost regarded as
havinga vestedrightin his land, which at his death is continued undimin-
ished to his descendants. To the most favored of the pensioners, it is only
allowed his son to succeed to a half of his pension, his grandson to
succeed to a quarter and the pension after that to cease altogether.
Yet the Jageer land was granted merely as the substitute for a money
payment by the Prince. It was sometimes more convenient to give the
one than the other and it must sometimes have been purely accidental
which was given. This being the case, there ought surely to be some ana-
logy in the present mode of dealing with the two kinds of endowment and
in following the suggestions of the Hon'ble Court with regard to the
pensioners in money, it might be advisable to adopt the sarne course
with the holders of Seranjams who are for the rnost part peiisioners paid
by an equivalent for money in a grant of land,but whose clairns upon the
State are not, generally speaking, a bit stronger than that of the first
and second class of money pensioners.
27. It wouId now appear to be proposed by the Acting Agent of
Sirdars, Mr. Mills that the Seranjams marked hereditary iithe original
list prepared under the orders of Mr. Elphinstone which have since been
resumed, should he restored to the heirs of the original holders, and that
they should virtualIy be hereditary, but the Hon'ble Courts orders do ANNEXES TO COUNTER-MEMORIAL (E NO. 1)
233
iiot go this length. They merely direct that where Mr. Marriott's
schedules are less favorable to the Jageerdars than those preparet-l under
the orders of hlr. Elphinstone, this Governrnent shall deliberately
consider which shall be actt:d upon.
28. Now, it will be found that, though some of the Jageers to which
the word hereditary is attziched in Mr. Elphinstone's list have been
resumed according to Mr. Marriott's list, the latter is the more favorable
of the two to the great body of the Jageerdars, many of those who would
have been dispossessed in the second generation altogether under
Mr. Elphinstone's scheme having been provided for by the regrant of
their lands or by a money allowance under those since adopted.
29. Under these circumstances, and. bearing in mind the explanation
of Mr. Elphinstone, that he meant the term hereditary merely to convey
a recommendation in favor of the families to whose Jageers it was
attached, that they should be continued al least for one more life, and
as no intimation was ever given to trie parties concerned which would
lead them to expect a confirmation of their lands to their descendants,
and that some of them have on the deaths of the holders been resumed
and others continued to their next heiss, there does not appear siifficient
reason to disturb the present arrangements to the extent at least of
restoring the lands and refunding mean profits of those Jageers which
have been actually resumed. It rnight be better in any such cases to
take into consideration the circumstarices and wants of the late Jageer-
dars families and grant a pi-ovision in money for their support.
30. But witii respect to the arrangements that have been made in
favor of the Jageers of the inferior Jageerdars in the Dekhan, on terms
more advantageous to them than Mr..Elphinstone's rirles would have
authorized, the suggestion of Mr . Mills that the present holders should
not be disturbed seems quite proper a.nd judicious.
31. Itwill remain for the Hon'ble Court to approve such rules for the
future for al1these Classes of Jageers ;is may be considered most appro-
priate to the nature of their tenureç and best calculated to produce
future uniformity of practice, in treating them and which without
neglecting the clairns on Government: of deserving families, may lead
gradually to the recovery of the greater part of that portion of the
resources of the State which they are at present permitted to enjoy.
32. Ifit is the intention of this Government to offer any suggestions
to the Hon'ble Court on the subject it may be proper to draw attention
to the expediency of declai-ing in the first place, that the tenure of no
Jageer Seranjam or services grant can ever be recognised ashereditary;
a decision of the Privy Council having already established that principie
in the case of AItangha grarits a species of grant aIways deemed superior
to that of Jageers and that as the Government in virtue of the law and
practice of India has full power at any time to resume such grants, any
portion of grants of this nature which it may see fit to continue in favor
of the familiesofformer holtlers is to be regarded as a new favor bestowed
on the parties whom it may be conferred and cannot in any manner be
claimed as a matter of right.
33. Tolay down precise rules for providing for the descendants of the
Jageerdars, it willbe very difficult to fix a scale which would apply with
equal fairness to al1 the individual casi:s of Clas1of Mr. Elphinstone's234 ANNEXES TO COUNTER-MEBIORIAL (E NO. 1)
table, or of the other Classes in whose favor the Bombay Government
has already made concessions. There must be great difference of circum-
stances in many of the cases to be disposed of and the same scale which
in some cases would entai1 an unnecessary sacrifice on Government
would in others not more than suffice to form a proper provision for the
families of deceased Jageerdars.
34. To overcome this difficuIty it would seem desirable to frame rules
on the principle of those which were approved by Court of Directors for
the Poona pensions by fixing a limit to the renewal of gants to the
families of pensioners within which the local Government might exercise
its discretion, on a due consideration of the circumstances and wants of
the parties to be provided for as to what portion of the value of the
original grant should be continued to them, having it always borne in
mind that it is our duty as well as our interest to reduce as far as possible
this burden on the resources of the Country. It might then be fixed
prospectively that the Jageers of the first Class shall on no account
be confirmed in full for more than two lives, that is, after the death of
the son or other successor of the Jageerdar who was in possession at the
time of the conquest; that the third generation shall on no account
succeed to more than moiety of the value of the original Jageer, and
the fourth and fifth generation to more than quarter of the same.
That on al1 occasions of making these reductions in the value of the
grant the local Governments unless it see good reason for continuing
part of the land rent free, or for levying a rent from the whole of it
equal to the portion of its value to be resumed shall commute the value
of the reserved tenure into a money pension and assess the whole of the
land. That with respect to the other Jageers in which Mr. Elphinstone
recognized only a life interest in the incumbents at the time of the
conquest, or which he proposed to reduce at their deaths, they are
invariably to be resumed, subject to the discretionary aüthority given
to the local Government in respect to commutation of the value of the
lands of the first Class, and that the provision to be made for the families
of the deceased Jageerdars shall not exceed one third of the value of the
lands they held and shall be granted only for one generation. And that
in any case which may appear to the local Government to deserve more
favorable consideration, no orders shall be issued to that effect without
the sanction of the Court of Directors applied for through the Govern-
mcnt of India. Adoptions should not be allowed to give any title to
succession which should be confined to legitimate offspring.
35,1 have taken the liberty to offer these suggestions because I
conceive that the rules proposed by the Acting Agent of Sirdars in the
Dekhan have been founded on a misconception of the intention and order
of the Hon'ble Court. Mr. MiIls mesumes it to be the Court's obiect to
render hereditary the estates marked ..Yet we aredesirous that Mr. Etphin-
as hereditary in Mr. Elphistone's Iist. stone'sSchedule should be com~ared
But it does not appear that the Hono- with those subrnitted in the letters
rable Court in their letter of the 7th when where the latterre less favo-
of February 1838 intended to corne to rabte to the parties it rnaybe deliber-
any decision on the point. Tlie extract two should be acted upon."iorthe
from the 14 para of that despatch
inserted in thé margin clearly'leaves it to be considered by this
Government, whether the Schedule of Mr. ELphinstone should incertain ANNEXES TO COUNTER-MEMORIAL (E KO. 1) 235
cases be the guide for determining whether estates were to be continued
or not in favor of the first direct descendants from the parties in posses-
sion at the tirne of the conquest, and makes no mention of adopting
the principle stated by Mr. Mills "that estates marked hereditary by
Mr. Elphinstone should be hereditary though not expressly declared to
be so". Mr. Elphinstone in his explariatory letter of the 11th of May
1820 had given his opinion, "that the grants marked hereditary should
be continued to the heirs of the present occupants"-that is to Say,
that there should be one succession after the existing occupants before
the estate should be resumed; not irideed but that he would leave
Government "at liberty to exercise its discretion in ganting or with-
holding the renewal". And this is precisely what has been done by the
Bombay Government in regard to this class of Jageers. It has exr:rcised
its discretion in resuming them or continuing them for another gene-
ration; and it would now be equally inexpedient to reverse its acts in
the cases of this class of Jageerdars as to direct the resumption of what
it has continued in fairor of other classes, because according to
Mr. Elphinstone's Schedules they are liable to resurnption. Tht: rules
proposed by Mr.Marriott anil approved provisioi.ially by the Government
of Bombay were highly favorable to al1Classes of theJageerdars.
36. In the cases of resumptions according to Mr. Marriott's list that
have been noticed by the Hon'ble Coiirt in a quotation from a recent
letter of Rlr. Elphinstone, it appears t:hat, the estate of Yeswunt Rao
Dhabang was continued to his son who is since dead, that the estate of
Sheik Meeran isstill held by the family, and the farnily of Shurnshere
Bahadur enjoys a pension from the British Government of four lacs of
rupees per annum. There a.ppear to have been three estates resumed
since the tables of Mr. Marriott were prepared which according to his
suggestions, would have continued for another generation. The Govern-
ment of Bombay will be atile to explain the reasons of this departure
from what they had before approved with regard to these cases.
37. 1 have troubled Government with the above remarkç at greater
length than might otherwise be proper, in consequence of the importance
which attaches to a decision in the Poona Jageers, ifit establishes any
principle with regard to other tenures of a similar nature in other parts
of the Country. They are numerous uncler the Madras Presidency as well
as in Bombay and in tliis side of India and where they are not guaranteed
by positive grants as hereditary property by the -British Goverriment,
they present the most legitimate source from wlience the finance of the
State may in time be gradually recruited. From negIecting to establish
some periodical review of the titles by which these estates an: held,
successions frequently occur unnoticecl by the Officers of Government
and every succession strengthens the title to an estate as a perpetual
alienation. The Government has lately called for returns of al1 political
stipends payable at the different residencies and agencies, and it would
probably be of use to obtairi similar information with respect to Jageers
with brief particulars of the nature ofthe grants by which each is held
and the ground of any assurned rights of inheritance entertained by the
present holders of them, and it might be expedient to resolve that al1
Jageers are held on a lifetenure, excepting, only such as have been
rendered hereditary by a deed of the 13ritish Government, and that no
successions will hereafter be allowed exceyt under the special oider in .4NSEXES TO COUNTER-3IEMORIAL (E NO. 1)
236
each case of Government, to be confirmed with respect to al1 estates
exceeding in annual income Kupees ro,ooo by the Government of India.
Fort William (Signed) TT.1-1.MADDOCK.
The 8th November 1841.
True Copies.
Sd/
Chief Secretary,
It was the practice under former Government both Mohomedan and
Mahratta to maintain a species of feudal aristocracy for State purposes
by temporary assignments of revenue either for the support of troops
for persona1 service, the maintenance of officia1dignity, or other specific
reaçon. Holders of such grants were entrusted at the same time with
the powers requisite to enable them to collect and appropriate the
revenue and to administer the general government of the tract of land
which produced it.Under the Mahomedan dynasty such holdings were
known as Jaghir, under the Mahratta rule Saranjam. If any original
distinctive feature marked the tenure of Jaghir and Saranjam it ceased
to existduring the Mahratta Empire, for at the period of the introduction
of the British Government there was no practical difference between
a Jaghirdar and a Saranjamdar either in the Deccan or Southern
Nahratta Country. The terms Jaghir and Saranjam are convertible
tems in these districts. The latter is now almost universally adopted.
These holdings being of a political character were not transferable nor
necessarily hereditary, but, as a rule, were held at the pleasure of the
Sovereign. On succession a Nazarana was levied. When of a persona1
nature they were termed Zat Saranjam, when for the maintenance of
troops Fouj Saranjam.
It will not be necessary on the present occasion to trace the history
of the families who heId these Saranjams or to dilate upon their many
vicissitudes. The history and vicissitudes of most of the Jaghirdar's and
Saranjamdar's families will be found recorded in Grant Duff's "History
of the Mahrattas". Tt will suffice to show here how they were treated
by the British Government on its accession to power. It was on the
18th June 1818 that the Honourable the Commissioner, Mountstuart
EIphinstone, first submitted to the Governor General "a general view
of the measures adopted for the settlement of the Peshwa's late country,"
and "suggestions on the plans" which seemed "best suited to the com-
pletion of that object". One of the most important subjects discussed
was the best method of providing for the Jaghirdar's and Saranjamdar's
whom the events of the war had depnved of their power and possessions.
It was proposed to do this by leaving them their personal holdings and
by pensioning on moderate sums the few not so provided for. As a
measure of policy, Mr. Elphinstone also recommended "pensions to ANKEXES TO COUSTER-31Eb10RIAL (E NO. 1) 237
some of the old Ministers of the State reduced to poverty by the perse-
cution of Raji Rao, a sort of bounty i:hat would be more popular than
the provision for that Prince's own Ministers".
The above was the arrangement proposed with regard to the JagIiir- .
dar's and Saranjamdar's gerierally. There were exceptions, such as the
Patvardhan Chiefs, Apa Desai, the Pant Sachiva and others in both
the Deccan and Southern &[ahratta Country whoçe possessions were
subsequently fixed on different principles. These formed and continue
to form a separate and spt:cial class, and, being protected by treaty,
need not be here further alliided to. For the rest the Governnor General
.deferred to Mr. Elphinstone's local knowledge and experierice anciidnot
question the soundness of hi5 policy. But Mr. Elphinstone made it quite
apparent that his arrangements in the first instance were provisional
only and were not intended to involve more than present alienation of
revenue. He distinctly guarded against any permanent alienations in
the case of holders not protected by treaty.He remarked, that "no grant
of any description has been declared liereditary, the distinction in the
list of Jaghirs transmitted to the Supreme Government into hereditary
and for life being intended as a suggestion for the future regulation of
the Government, but having in no instance been communicated to the
party concerned."
Indeed, Mr. Elphinstone had propost:d to reduce the persona1 Jaghirs
in the event of any increase of the available revenue of the country
'being deemed absolutely required. This, however, the Government of
India did not consider necessary, although it was distinctly intimated
thatthe alienationof revenue, which these liberal arrangements involved,
wassanctioned not asa permanent but as a prospectively diminishirig one.
"Every fair occasion should be taken to resume or curtail Jaghirs
falling inby the death of the holder."
On the 25th October 1810 Mr. Eiphinstone reported to the Supreme
Government the completion of his wcirk in the following despatch:-
"1. 1 have the honour to report the completion of the plan proposed
inrny despatch No. 78, for restoring the persona1 lands of the Chiefs,
Ministers, and other Jaghirdar's of the hlahratta Government.
"2. The first stey in this operation \vas to extract froni the Peshwa'ç
Daftar a full account of each Jaghir, and to asccrtain, as correctly as
possible, the character and history of each Jaghirdar, with thr: time
when he made his subrnission to the British Governrnent. This was
.done immediately after the war.
"3. The Collectors were next furnished with lists of the personal
Jaghirs, and requested to ascertain their actual value,and whether they
were in force up to the breaking out of war.
"4. After time had been allowed for this enquiry, a proclamation \vas
yublished, calling on al1 who had clainls to Jaghirs to appear and show
their sanads, with lists of their persona1 lands, acquainting them that
it was in contemplation of His Excellency the Most Noble the Governor
General to make some provision for them, and apprising them that none
who did not appear before the 15th September would be attended to.
"5. The investigation was now committed to Mr. Nc Donnell, who
proceeded to compare the statements of the Jaghirdar 's with those
dra~n up in the Daftar, checking both by the accounts receivecl from~38 ANNEXES TO COUNTER-hIEMORIAL (E NO. 1)
the Collectors. A complete register was framed on this comparison,
showing the name of the holder of each Jaghir; the date and nature of
the grant; the situation ofthe lands, and the sources of revenue when
not drawn from land; with the kamal or highest revenue, the revenue
as stated by the Jaghirdar, and actual collections as reported by out-
officers.
"6. The whole list was then exarnined, and decisions passed on each
case.
"7. Al1 were left in possession of their lands except such as were
granted as late as Baji Rao's time, to whom pecuniary pensions were
assigned.
"8. Al1 Jaghirs held by ancient and great families were recommended
to be hereditary (but no communication has been made on this subject
to the holders). Those which were to cease at the death of the present
possessors were specified, and where any allowance was to be continued
to their heirs it was likewise noted down.
"9. Besides these principles which determined the grant, other detailed
rules were drawn out regarding the manner of executing it, and are
enclosed (No. 1). The object of them was the convenience of Govern-
ment and the accommodation of the Jaghirdar's.
"IO. The enclosed statement No. z shows the result of the above
inquiries, and the decisions passed on them. Where the principles and
mles laid down have been departed from, the reasons are always stated
in detail; a short account of each of the principal perçons is also given.
"II. No. 3 is an abstract of No. 2; the Jaghirs in Satara were after-
wards deducted. The balance shows what is still to be paid by the.
British Government,-it amounts to Rupees 7,46,z6g-13-0 of actual
collections; but as many are already in possession, and others have not
appeared, the actual deduction from Our future revenue will not amount
to this surn.
"12. The reason why those who have not appeared are still allowed
a hearing on accounting for their absence is, that it is probable they als~
held them as Inams (a case not unfrequent), and have, therefore, been
already put in possession; this would sufficiently account for their
non-appearance. The following are the detailed rules which are referred
to in the 9th paragraph of the letter just quoted:~
"1. When a Jaghirdar has no fixed villages for his persona1 Tynat,
he is to receive villages of the average goodness of the Pargana, the.
Tankha of which shall amount to the sum fixed for his persona1 Tynat.
In cases where the grant to the Jaghirdar's has been regulated by the
Kamal instead of the Tankha, he will receive villages the KamaI of'
which will amount to his persona1 Tynat. A Jaghirdar will be allowed to
selecta village for his residence, the rest will be fixed by Government,
as may be most convenient; and if he should willingly take money.
instead, it will be so much the better-the sum to be something above
the actual collection from the villages he would otherwise receive. -4NNEXES TO COUNTER-EIEMORIAL (E NO. 1)
239 '
"II. IVhere a large portion consists in partial collections in money
and kind, on the lands of other persons (Amal), one village rnay be
granted, and the rest of the personal allowance made in money; the
amount to be regulated by an average of the colIection froni these
sources.
"III. The sarne scale may be adopted, when not particularly incon-
venient, eïren if the whole Jaghir should consist of Amals.
"IV. The holders of Mokasa, in districts where the revenue has much
declined would probably accept of a fixed pecuniary payment, which,
though much inferior to what the Mokasa would hereafter rise to, will
still be considerablp above the receipts from that source. Bargains of
this kind ought always to be concluded when they appear favourable
to Government; when Mokasa is derilrable from the villages in the pos-
session of foreip States, the Jaghirdar is to be allowed to collect them
according to former practict:, unless they have been exchanged or ceded.
In the former case compenjntion will be made by Government, but in
the latter none.
"V. The above rule is applicable to Jaghirs; it shoube recommended
to Government to exchange any that lie within the territories of foreign
powers.
"VI. IVhere money is given in lieu of Jaghirs situated in Satara, the
sum is to be paid by the Raja who is to receive the villages.
"VII. No Saranjam ceded to the British Government by the Treaty
of 1817, and no Jaghir not actually enjoyed up tothe war, to be restored,
unless specially directed so to be.
"VITI. In al1 cases of Mutsadis, where they do not reside upon their
Jaghir, and have no particular ground of attachment to it,a pecuniary
payment, somewhat exceeding the produce of the Jaghir, ought to be
made, instead of actual restoration, uiiless in peculiar cases, which will
be specified in the list and marked 'land'.
"IX. In cases where members of the Huzarat, and other persons.
whose Jaghir it is absolutely necessary to continue, have a large share
of their resources within the Nizam's country, an application must be
made to that prince to continue them in the same manner as Inams.
"X. Ditto. Ditto. Iljtto. Paga Chicfs.
"XI. A list of the Jaghirs of Ministers of foreign States to be sent
to the Residents at the Courts of those States, and their opinions to be
solicited confidentiallyas to the exptidiency of continuing the~n."
Such was the plan proposed by Mr. Elphinstone, and sanctioned by
the Government of India, for restoring the persona1 lands of the Chiefs,
Ministers, and other Jaghii-dar's of the Mahratta Government.
The transmission on the 25th of October 1819 of this despatch was.
one of the last officia1actsof the Honourable Mountstuart Elphinstone
as Commissioner and before proceeding to Bombay to the Government
of which he stood appointed. In some respects it was not to be
supposed that the lists could be complete. Indeed, Mr. John Warden,
his first Assistant, has recently pointcd out (1852) that from personal
knowledge many of the Saranjams were left unsettled though included
in the lists. The Governor General replied on the 4th March 1820. He çtated,
that, though he recognizes in the lists an adherence to the principles
laid down in the instructions of 26th September 1818, a considerable
diminution had taken place in the hopes then framed of an efficient
revenue from the conquered country applicable to the general service
of the State, and that he was therefore anxious that the alienations of
public revenue, either in Jaghirs, pensions, or other grants, should be
limited as much as possible as to number, amount, and duration.
He ordered a revision in any instance in which the faith of Government
was not pledged by the promise of the Honourable the late Comrnissioner,
or in which it was not deemed essential for the tranquility of the country
or on other important grounds of political expediency that the grant
proposcd should take effcct. His Lordship trusted that cases might be
found in which neither good faith would be violated, nor the tranquility
of the country endangered, nor essential plans of policy frustrated by
reduction. In illustration of his sentiments, the Governor General in
Council particularized several instances which casually struck him as
admitting of revision, and remarked generally with reference to the
grants proposed to be made hereditary, that he doubted the policy of
making any grants hereditary which might justly be put on the footing
of life-grants. By keeping them as life-grants, he observed, Government
was by no means excluded from the power of renewing them ifit should
be deemed expedient to do so, while every renewal would be a fresh
act of grace conferred on the individual receiving it; but by at once
declaring those grants hereditary, Government would be precluded both
from resuming its rights when it might be necessary to do so, and from
conferring favours on the descendants of the grantees, and would thus
be deprived of a probable source of future improvement inrevenue and
every other branch of civil administration, as well as of the means of
winning attachment by persona1 obligation.
Mr. Elphinstone, then Governor of Bombay, replied on the 11th May
following (1820), that, while deeply serisible of the necessity of economy
and willing to adopt every practicable means of reducing the expenses
with which the recent conquest from the Peshwa was burdened, he
found it impossible, after the most careful revision, to effect any con-
siderable saving. He added, that while al1had been told that they would
hold for life, "no gant of any description liad been declared hereditary",
though he suggested that the grants marked "hereditary" should be
continued to the heirs of present occupants, but he entirely concurred
with His Excellency the Most Noble the Governor General in Council
in respect to the expediency of renewing the grant on the death of each
incumbent, and concluded by stating that Government would, indeed,
be at liberty to exercise its discretion in granting or withholding the
renewal on such occasions, except in the case of what was termed
Padshahe grants, which ought, in al1 cases, to be renewed; and of the
more ancient grants by the Raja's of Satara, which should be treated
with similar attention.
On 17th June the Government of India yielded to bIr. Elphinstone's
opinion and concurred in the proposed expenditure, with, however,
a marked allusion to the necessity of its not being allowed fo become
a permanent one :-
"The Honourable the Governor in Council being of opinion that it is
impossible to effect any considerable saving in the Jaghirs and pensions ASNEXES TO COUNTER-MERIORIAL (E SO. 1) 241
with which the territory coiiquered from the Peshwa is burdened, the
Governor General in Council, in reIixnce on the Judgement of the
Governor in Council, has only to express his own concurrence, trusting
that advantage will be takeriof every Imper opportunity to reduce the
expenses incurred."
This closed the discussion at that time; and the general subject did
not again corne under the consideration of the Bombay Government
until1832, when the Deputy Agent for Sirdars, Mr. John Warden, who,
as already mentioned, had been Mr. Elphinstone's first Assistant, pointed
out the necessity of establishing some uniformity in practice in dealing
with Saranjams, forthat, "as each of these fa11in his Lordship in Council
is troubled with correspondence and recommendations, and so different
have the decisions sometimes been in cases of a similar kind, that no
uniforrn principle can be said to be yet established". This led to the
adoption of Mr. Warden's proposals. Lists were prepared by him, and
these having been revised by the Agent for Sirdars Mr. Mamott, were
submitted to the Honourable the Court of Directors, who, however,
decided on making a still more liberal provision for the Jaghirdars, for
reasons subsequently explained, in their despatch No. 17, dated 26th
October 1842, to the Governrnent of Bombay to have been:-
"Although this arrangement (the arrangement proposed in the lists
prepared by Messrs. Warden and Marriott) would not have violated any
pledge given to the Jaghirdars, it was greatly at variance with the
recorded intentions of Mr. Elphinstone; and after having cornrnunicated
with that gentleman on the subject, we fonvarded to the Government of
India the substance of a paper receivcd from him, the yrinciples laid
down in which we desired might be conformed to in reconsidering the
subject. hlr. Elphinstone observed that the maintenance of many of the
Chiefs in their possessions tvas suggested for the purpose of avoiding
popular discontent, and prerrenting the too rapid fa11of great families;
but that in other cases it waç recom~nended in the belief that the holders
were entitled of right to an hereditary tenure, not (in generby) express
grant, but by length of posst:ssion. This remark, he said, was applicable
to al1 those families which had held their jaghirs from the time of the
Mogal Emperors or the Kajas of Satara.
"The Jaghirdars of the Peshwa, said Mr. Elphinstone, stood on a
different footing: theyhad arisen under the dynasty which wesubverted:
none could have been inpossession foi: more than seventy years; and
they had been kept in mind, by the exaction of service, as well asby
occasional resumptions, of the real nat.ure and extent of their tt.mure.
Much consideration was, however, due to them as the actual possessors
of power, and they were alIowed to retain their personal lands for one or
more generations, according to their meritç or importance.
"Mr. EIphinstone thus recognised two classes of Jaghirdars, those of
the Mogal Emperors and the Rajas of Satara, whose lands he recom-
mended should be heredita~ in the fullest sense of the word; and those
of the Peshwa, who had a daim to hold their lands for one or more
generations."
These instructions were isjued by the Honourable Court on the 7th
February 1838, and in conformity to them the Agent for Sirdars was
on the 6th November foilowing directed to prepare and subrriit to-
Government "revised lists of the Jaghirdars and the rules for succession
to their Estates".
17 2q2 ANXEXES TO COUNTER-MEhIORIAL (E NO. 1)
Amended lists were accordingly prepared by the Agent and submitted
to,the Honourable Court, who, however, disapproved of them, pointing
out (in their Despatch of the 26th October 1842, No. 17) that their
previous orders had been misunderstood, and calling for new lists in the
following terms:-
"6. In attempting to apply those principles to the various cases under
review, Mr. Mills, the Acting Agent for Sirdars, has fallen into a mis-
apprehension which you have failed to correct.
"7. He affirms that none of the Deccan Saranjams corne within
Mr. Elphinstone's first class, al1 of them being grants made since the
Peihwas commenced to reign. This result is arrived at by assuming that
Balaji Vishvanath, the first Peshwa, comrnenced to reign in A.D.1714,
while the earliest grants of which the date is known are of 1719.
"8. But it is only by a complete historical error that al1 acts of the
Mahratta Govemment subsequent to 1714 can be considered as acts of
the Peshwas, in contradiction to the Rajas of Satara. Balaji Vishvanath
was appointed Peshwa in 1714, but so far was he from obtaining undis-
yuted control over the Raja that, upon his death in October 1722, his
son, Baji Rao, was not appointed to the Ofice of Peshwa until seven
months after his father's decease, the duties of the officebeing discharged
during the interval by the other Ministers ofthe Raja. Even Baji Rao,
though he made long strides towards the permanent establishment of
the power of his family, can only be considered as the principal officer
and Minister of Shahoo Raja; the supreme authority over the Raja and
the Mahratta State was first usurped by the son of Baji Rao (Balaji
Baji Rao). This usurpation, however, was not effected in the life-time of,
Shahoo Raja, who was never deprived of persona1 liberty or sovereign
authority as far as he chose to retain it, and exercised it shortly before
his death in 1749, by naming Ram Raja his successor. It is from the
troubled period which immediately succeeded this event that the sover-
eignty of the Peshwas is most unexceptionably dated, and the year 1751
may be fairly assumed as the epoch of its commencement.
"9. We direct, therefore, that all Jaghirs in Clas1.of Mr. Mills'slist
which bear dates anterior to 1751 be, as Mr. Elphinstone recommends,
hereditary in the fullest sense of the word, together with those of which
the dates are unknown, but which are known to be ancient. The latter
clasç, though small, includes the three resumed Jaghirs of Shaik Meera,
Shamshere Bahadar, and Eshvant Bao Dabhare. The first of these,
already restored to the son of the last holder, but for life only, must be
considered hereditary; the second and third, which are now under
attachment, must, if there be any direct heirs, be restored; and in al1
three cases the receipts from the date of attachment must be accounted
for to the Jaghirdars.
"IO. In addition to these ancient Jaghirs, ail those of more recent
date, which were granted in commutation for the resumption of ancie~lt.
possessions (which is known to have been the case with some), are
entitled in like manner to an hereditary tenure.
"II. With respect to the Jaghirs of more modern origin, Mr. MilIshas
fallen into another error in supposing us to have determined that all
estates which were marked 'heredita~y' in Mr. Elphinstone's original
recommendation should be hereditary. On the contrary, we expressly AKNEXES TO COUKTER-hlEhIORIAL (E NO. 1) 243
declared Our intention to be only that Mr. Elphinstone's sc'hedules
should be compared with those submitted with the letters under reply,
in order that, in any case wliere the latter are less favourable to the
parties,it may be deliberately considered which of the two should be
acted upon.
"12. With regard to Saranjam grants bearing date subseqiient to
1751, resumption after a second generation from the conquest, making a
pensionary provision equd to half the net proceeds of the Saranjam
lands for the generation next succeeding, should be the gener;il rule;
but in cases in which Rlr.Elphinstone may have recommended a more
extended provision, it should bede1ibt:rately consideredby you and the
Governor General in Council whether the services or merits of the family,
or the popularity which would attacli to the act, furnish an aclequate
inducement to make an exception io the rule, by prolonging for a
further term the tenure of either the whole or a portion of the Jaghir.
We should malce these exctiptions liberally, and we would extend them,
where simila reasons reccimmend their adoption, even to cases not
mentioned with particular favour by Mr. Elphinstone."
'In directing the Agent for Sirdars to carry out on gtli May 1843 the
Honourable Court's orders in the most careful manner, the Bombay
Government issued very full and detailed instructions or1the subject of
revising these amended lists. New lisi:s were accordingly submitted on
the 29th December 1844 .ut they were not considered in al1 respects
satisfactory, and Government took occasion to point out to Mr. .Brown,
who meanwhile hacl succeeded Mr. Warden as Agent, in how far the
latter officer's interpretatioof the Honourable Court's orders differed
from that placed upon the~n by the Ciovernment. Important principles
seemed to have been miçunderstood or carelessly applied, and the
attention of the Agent was especially drawn to them. The Government
orders were very clear, and concluded by pointing out the necessity of
extreme caution on the part: of the Agent who was told that -
"The greatest care should be taken in collecting the further
information now called for since the re-opening of the question of
the character of these grants presents an opportunity for the
commission of fraud and deception which the greatest caution and
vigilance on your parts can alone prevent."
Revised lists were subrnitted to Government on 26th October 1847,
but, supplementary iriform;ition being called for, they were only some
time after forwarded to England. They eventually received a general
sanction in the Honourable Court's Despatch dated zznd May 1849,
No. 15.
It u7assubsequently discovered, however, that errors and oversights
of a grave nature affecting the interes1.sof Government existed iiithese
lists, and it was determinedto subject them to the scrutiny of thi: .Inam
Commission (Govemment letters Nos. 4175 and 4249 of 1852). The
scrutiny by the Inam Commission elicited the fact that the enqniry by
Mr. Warden which resulted in the new lists of 1884 was most faulty and
imperfect and that the revision by Mr. Brown which produced the fresh
lists of1847,though carried out under special orders from Government,
did nothing but add to the difficulty.244 ANNEXES TO COUNTER-RIEMORIAL (E NO. 1)
It remains only to be said that, eventually, the settlement effected,
the outcome of which are the following lists, was regulated by the rnost
liberal interpretation of the rules fixeby the Honourable Court, viz. :-
1st. That al1 Saranjams grantecl prior to A.D. 1751, or held in com-
mutation for anything so granted, should be considered hereditary.
2nd. That al1 Saranjams granted between A.D. 1751 and 1796 should
be continued to the holder at the introduction of British rule for one
generation further, with a pension of half the net proceeds of the Saran-
jarn to the third generation.
3rd. That al1 Saranjams granted after A.D. 1796,-that is to Say all
Saranjarns granted by the laçt Peshwa Baji Rao,-should be continued
to the holder at the introduction of British rule, after his death a pension
of half the net proceeds being granted tothe next generation.
The wordhereditaryin the lastrule çimplymeant, in the first instance,
continuance to the occupant at the introduction of the British Govern-
ment, the first British grantee, and his descendants; but itwaç subse-
quently allowed with retrospective effect to comprise the brothers of
the first 13ritiçh grantee and their descendants1 ; though in case of a
Saranjam being divided among these brothers, or other separate pro-
vision having been made for them, each brother would in that case trans-
mit his separate interest to his descendants without the right of cross
inheritance in case of the failure of lineal descendants
There were certain subsidiary rules but these need not be detailed
here. In this manner forma1 adjudication was at length completed.
Succession to Saranjams is restricted to lineal maIe heirs in the order of
primogeniture. The eldeçt çon is the heir in the first instance, and his
name is thus entered in the listof Saranjarndars. The fact of a younger
son having had the management in his father's life-time does not affect
this rule.
In Saranjams continuable for two generations with pension to a third,
the eldest surviving son represents a generation.
In Saranjams of the second class, if the eldest son of the first British
grantee die before his father but leave a son, that son on his grand-
father's deatfi is to be considered the second generation, and the whole
Saranjam will be continued tu hirn,but in thic sase nopension is allowed
to the next generation.
The lawç relating to Jaghirdarç, Saranjamdars, and Sardars generally
are :-
Regulation XXIX of1827.
VI1 of 1830; and XIII of 1830. .
of 1831; and XVI of 1831.
ACt XIX of 1835. .
,, XII1 of 1842.
,, XXIII of 1871.
Bombay Act III of 1863.
II of 1866, Secs.2 and 5.
XIV of 1866, Sec. 3.
itaryinsthe fullest senof theword. meaning came aftenvards to be termed hered-
2 Despatch from the Secretaryof StateNo. S dated20th February 1860, paras
13 and 14. ASNEXES TO COUNTER-IIIEIIORIAL (E NO. 1) 245
The rank of the different Saranjanidars is decided by their place in
the list of Sardars.
A. T. ETBEKIDGE,Colonel,
Alienation Settlement Officer,
Deccan and Southern Mahratta
Country.
EXTRACT SROM "THE INIIIANL~~ND PKOBLEM AND LEGIÇLATION" BY
G. D. PATEL, Igj4, pages 39-40; 48; 364
" Jahagirs and Saranjams.
The expression Jahagir' isa Persiaii word compounded of two words,
Ja or Jai meaning a place or position and gir meaning taking or occupyjng.
Literally, it means (1)holding or occupying a.place or positioii or (2)
holding land. But owing to its political associatioitrequired a tcchnical
sense meaning a tenure of :Iparticular kind. It was a tenurc which was
common under the Rluslim Rule in which the public revenues of a given
tract of land were made over to aservant of the State. The word "saran-
jam" literally mcans apparatus, provi!;ions or materials. In his Glossary,
Wilson defines saranjam as temporary assignmcnts of revenue from
villages or lands for suppcirt of troops or for persona1 service usually
for the lifetimc of the grailtees; al1 grants made to persons appointed
to civil officesf the State toenable them to maintain their dignity and
to grants for charitable pilrposes. They were neither transferable nor
hereditary and were held during the pleasure of the Sovereign. This
definition is corroborated by the description of the saranjam given by
Mountstuart Elphinstone in liis "Report on the Territories coriquered
from the Peshiva" l.
According to the account given by Col. Etheridge in his preface to
the Saranjam List, it was the practice of the former Governments,
both the Muslims and the Marathas. to maintain a species of feudal
aristocracy for the State purposes by temporary assignments of revenue
either for the support of the troops 01.persona1 service, the maintenance
of official dignity or for other specific reasons. The holders of such lands
were entrusted at the time with the necessary powers for enabling them
to collect and appropriate the revenue and to administer the general
management of the lands. Under the Muslim rule, such holdings were
called Jahagirs and under the Maratha rule, they came to be called
Saranj ams. However, this distinction between these tenures ceased to
exist during the Maratha period. At the time of the introductioii of the
British rule, the difference between a Jahagir and a Saranjam ceased
to exist, to al1intents and purposes. The two terms became convertible
and al1such grants came to be known by the general term 'saranjam'.
Apart from the Saranjam grants, whic:hu7erefound only in the Deccan,
there were other grants of a political nature found scattered over the
whoIe State. Their origins did not materially differ from those of the
f Report, p.XXVI of itsappendix. ANNEXES TO COUNTER-MEMORIAL (E NO. 1)
~4~
Saranjams with the result that the British treated them under the
same rules called the Saranjam Rules."
"6. The Reszcmption Rules of1i52.
It may be recalled that the Saranjams and Political grants were gover-
ned by the Saranjam Rules of 1898 . s pointed out by the Full Bench
of the Bombay High Court in Daulatrao v. Province of Bombay, (49
Born. L.R. 270) that the said Rules were rules of convenience only. They
did not exhaust the general power of Government or prevent Goveni-
ment from making any decision or determination referable to a par-
ticular Saranjam. In the same case, it is observed t"the whole structure
of the saranjam tenure is founded in the sovereign right, which can
only be changed by conquest or treaty. So founded, Jahagirs or Saran-
jams, with the feudal incident connected with them, are granted or
withheld at the will orleasure of the sovereignpower, and,ifgranted, the
fixity of the tenure is always subject to interruption or revocation by
resumption, be it temporary or absolute in character". This decision
of the Bombay High Court was consistent with earlier decisions of the
said Court and was supported by legislative enactments from earlier
times. Section 38 of Bombay Regulation XVII of 1827 provided that
land held exempt as jahagir should be liable to resumption and assess-
ment under the general rules at the pleasure of Government. This prin-
ciple was repeated in the Bombay Regulation VI of 1833 (section r(3)).
Since the saranjams and political grants were continuable at the pleasure
of Government, it was open to Government to resume them. In this
background of the law, it was not deemed necessary to undertake a
special legislation for resuming these grants. But as they were governed
by the Rules, they could be resumed by Government by special Rules
framed for the purposes.
Consequently, Government framed the special rules called the Bombay
Saranjams, Jahagirs and other Inams of Political nature, Resumption
Rules, 1952 .hey have superseded the Seranjam Rules of 1898. They
apply to the saranjarn and political inams of the whole State (excluding
the merged territories), which have been classed as inam class I in the
Land and Cash ALienation Registers and the Saranjam List of 1900.
They have been brought into force with effect from the 1stNovember
1952.
The expression "politicalinam" has been defined as a grant in saran-
jam, jahagir or other alienation of political nature which may be either
of the following kinds or both :
(1) grants of a village or a portion thereof,land revenue either
in whole or part entered as class1in the Land Alienation Registers
kept under section 53of the Land Revenue Code or in the Saranjam
List prepared under the orders of Government,
(2) a grant of cash allowance entered in the Saranjani List or the
Cash ALienation Registers prepared under the Rules framed under
the Pensions Act, 1871.
But these allowances do not includea privy purse ofa Ruler in respect
of which a guarantee or assurance is recognized by Article 363 of the ANNEXES TO COUNTER-MEMORIAL (E NO. 1) 247
Constitution. If any doubt arises as to the nature of the grant, the
question is to be referred to the State Government and its decision
shall be final (Kules 3 and .c).
With effect from the 1st November, 1952, al1these saranjam and poli-
tical inams have been resumed by Government and al1 rights legally
subsisting on that date have been extinguished. But in the case of
political inams which consist of exemption from payment of land revenue
only, such exemption shali be extinguished.
(a) with effect from the 1st August 1953 f the' amount of such
exemption esceeds Rs. 5,000 per year,
'. (b) with effect from the 1st Aupst 1955, in a11other cases.
This provision has been adopted from the Bombay Persona1 Inams
Abolition Act, 1952 with a view to giving relief (or compensation) to
the small saranjamdars aiid political inamdars in the State. It was
necessary for maintaining uniformity in the two measures (Rule 5).
The Rule 6 isvery important. AUvillages and lands, if they were the
gants of the soil, have been resumed and now vest in Government free
from any rights, tenures, int:umbrances or equities created by the holder.
But if there isany Kadim inferior holder in possession of lands on pay-
ment of annual assessment:, he is to continue to hold the land as an
occupant on new and impartible tenure.
Al1 inam villages and larids, which consisted of exemption from pay-
ment of land revenue have been resumed and vested in Governmi3nt free
from any rights, tenures, incumbrances or equities createdby the holder.
But if they are in actual possession of the holder or any yerson holding
from him, and, if there isan inferior liolder, who pays only assessment,
the resumption in thecase of such lands isby Ievy of full assessrnent only.
This means that they are not to be dispossessed of such land.
The provisions of the rult6 (1) are far reaching in effectand form the
crux of the Rules. Under it, all the soil saranjams have been resumed
outright and the saranjamdar is left with neither land nor land revenue.
Although ont of IOO saranjams, the riumber of soil saranjams 1na.y be
about IO or so; still in view of the absolute resumption of such grants
it is urged that the saranjamdars are hard hit by the absence of any
provision either for grant of compensation or lands. The Governrnent
stand is perfectly legal; h;isresumed what had been originally granted.
Consequently, Itcannot be chalIenged in a court of law l.
Such is not the position of the land revenue saranjamdars, (whose
number is considerable), under the Resumption Rules. They are allowed
to retain the lands which .arein their actual possession or in possession
of persons holding from them. In the result, their domestic economy
will not be disturbed.
As regards the forests in the Saranjam villages, in the case of the soil
saranjams, saranjamdars are not ent.itled to the forest trees, as such
trees have vested in Goverriment on ri:sumption. In the case of the land
revenue saranj amdars, the land not lieing vested in the saranj amdars,
certain landsinthcir actual possession on payment oanominal occupancy priccnted
of three times the assessment of the lands, having regard to theifrtimother
sources subject to the conditicin that they gpro rata maintenance allowance
to their dependants who received such allowances before resumption. ANNEXES TO COUSTER-ME'rIORIAL (E XO. 1)
~48
the trees upon the land wouId not vest in them. They (saranjamdars},
therefore, would not be considered as being in actual possession of the
land on which the forest trees are growing. AS a result, the provisions
of rule 6(2)(a) are not attracted and the saranjamdars are not entitled
to the forest treesl.
If the inam consists of a cash allowance, the holder is entitled to get
compensation equal to seven or three times the annual amount of such
allowance, according as the allowance was recognised hereditary or for
the life time of the holder. This payment is to be deemed in full settlement
of his claim to the inam. It is made clear that the compensation provided
in the case of these cash allowances is by way of grace only (Rules 7, 8
and 9).The RuIes have been revised in order to provide for payment of
compensation in transferable bonds bearing interest at 3% and redeem-
able during a period of zo years in equated annual instalrnents of prin-
cipal and interest.
The Saranjam Chauth and other allowances which are chargeable
to the Central revenues are not covered by these Rules. They are con-
tinuable as hithertofore until the Governmcnt of India decides upon
their abolition.
The Rules have been published in the Bombay Government Gazette
(Part IV) dated 17th September 1952. By issuing the Kesumption Rules,
Government completed its programme of abolishing inams and watans
in the Bombay State excluding the merged areas."
"According to Wilson's Glossary of Judicial and Revenue Terms,
the expression 'Jagir' means any grant of land and/of land revenue
made by a ruler to his servant or siibject in appreciation of services
rendered orto be rendered in future. It consisted either of entire villages,
parcels of land, amals (shares of revenue) or cash alIowances. The jagirs
were, generaily, for the life-time of the grantees and consisted of land
revenue. Although prima facie, they were estates only for life, they were
granted in such terms which made them hereditary. The grants were
made sometimes to the relatives of the ruler formaintenance and support
of the status and dignity. Some grants were for maintenance of troops
or private emergency on the State."
"it is clear that the grants ofjagirswere made by different rulers -
Muslirns, Rajputs or Marathas - for creating feudal interests, which
would render assistance and support tathe State both in peace and wu.
Further, the Jagirdars were expected to carry out the wishesof the Rulers
in al1 the circumstances and any negligence or rernissness in duty on
their part was visited for forfeiture of the jagirs. Thus au the jagirs
whether they were for lifc-time, hereditary or permanent, were conti-
nuable during the pleasure of the Ruler and there was nothing which
could prevent the Ruler from resurning them even for the slightest
dereliction of duty, real or imaginary."
l G.M., R.D.No. 7494/5i-M (sp 1)dated 14th March,1953.
Gulabdas v.CollectoroiSurat, I.L.R. 3 Born. 186 (P.C.). ANNEXES TO IJOUNTER-MEMORIAL (E NO. 2)
249
Annex E. No, z
Part I
Treaty in respect of the: differences that arose between the Great
Baji Rao Pradhan and the Firangee, made by Vencat Rao and Dadaji
Rao, generals of Uaji Rao Pradhan with Antonio Carneiro do Alcacao
and Jose Pedro Emaus dated 27 Muharram, Suhur San Tisa Salasin
Maya Wa Alaf. (Seal.)
Agreement has been made to deliver to Shrimant Baji Rao Pradhan
the fortress of Bassein and territory and posts under its jurisdiction.
Thereby hostilities will be stoyped. Shrimant Rao (the Peshwa) wili
deliver to the Firangee the port of D;irnan, its territory andits posts.
The troops from that territory will bt:withdrawn. But should fighting
have taken place between the two parties before information of this
agreement reaches the nortli then it is left entirely to the Rao to adhere
(or not) to this agreement. And after this agreement is accepted by
both parties the ryots of Bassein, Christian and Hindu, will march out
of the fort of Bassein with their propertyand arms and deliver the fort
to the Rao Pradhan. Such of the people in the fort who choose to go
away will be allowed to 1ea.vein peace and allowed to go to whatever
port without molestation. Copies of this agreement shouldbe despatched
separately by both parties without delay and letters should be sent to
the North. The agreement concluded at Goa is finalWritten at Raia 27
Muharram Suhur San Tisa Salasin Maya Wa Alaf. (End of writing.)
An agreement made by Vencta Rou and Dadajee Kao, generals of
the magnificent Bagi Rao Pardone, tlie Plenipotentiaries of the Portu-
guese States being present, narnely A.ntonio Carneiro de Alcacao and
Joze Pedro Emans, on the 27th of April, 1739.
That the Portuguese states shall contribute seven lacs of Rupees each
rupee being equal to two Xerafins of Goa coinage-for defraying the
expenses made by the forces at present occupying their territories, in
order that the aforesaid forces may break up the camp; and it is stated
as follows-as soon as the stipulationsare signed by both parties, two
Portuguese of note shall be sent bringing with them two lacs of rupees
for defraying the first instalment-that the army immediately after
hàving received the first instalment, shalI decamp and that al1 the
troops which are to be found in Salsetteand Bardez, shall quit these
',Translatiofrom "The Portuguese and the Marathasby Pissurlencar, V4.. ANNEXES TO COUNTER-JIEMORIAL (E NO. 2)
250
two provinces and abandon the fortresses, they may hold, thus leaving
the country free to be inhabited and cultivatedby its proper inhabitants
and that the main body of the army shall go up the Ghats leaving
behind one chieftain with some people beyond the dominions of the
Portuguese, where also the two Portuguese shall remain as hostages,
until the second instalment be duly paid. .
That within a fortnight the second instalment of three lacs of rupees
shall be made up, payable in money, gold, silver coral, cochineal, and
other different goods and that after having paid the second instalment
the Portuguese shall deliver up an obligatory writing for the payment
of the two other lacs which are left, to be paid within six rnonths, and
that for assurance of this last instaIment, two natives of the camares
Gracee (magnificent members) of Salsette and Bardez shall be delivered
as hostages and they shall remain in such place as may be assigned to
thern until ineffcct, the said instaiment shall be made good; and that
as soon as the aforesaid obligatory writing be delivered up, together
with the said hostages, the two firstwhite men who had been given as
sureties for the first five lacs of rupees shall be at liberty toreturn
home. At Raia on the 27th of April, 1739 signed Antonio Carneiro de
Alcacao Joze.
PEDRO EMANS.
(3)
THIRDDOCUMENT .7~~ APRIL,1739
.SECOND TREATY
Stipulations of peace agreed to between the magnificent Ragi Rao
Pardone and the Portuguese states in presence of Vencata Rao and
Dadajee Rao, generals of the magnificent Bagi Rao and Antonio Car-
neiro Alcacao, and Joze Pedro Emans Plenipotentiaries of the said
Portuguese states on the 27th of April, 1739.
That the Provinces ofSalsetto and Bardez, with ail their fortresses,
belong ilztoto to the Portuguese States, and in order that the same
States may enjoy them, they shall be evacuated by al1 the troops at
present occupying them; but with declaration that from the royal quit
rents [forosteas] paid every year by the villages to the said Sta40sper
cent shall be deducted and deIivered to the magnificent Bagi Rao
Pardone.
As the said provinces of Salsette Bardez are found ravaged by the
frequent irruptions of the native annies the magnificent Bagi Rao
Pardone and his chieftains shall fulfîthe seguroandquit:, the States
may have granted to the villages that the islands of Carjooren and
Pandem shaii be delivered up to the Bhonselo, who shall be released
and continue exempt from contribution to the States rooo Xerafins
[500 rupees] yearly as promised in the stipulations made in the time
of Siva Bhutt and that a papershaU be given to him showing that hg
is exempted from paying the aforesaid sum.
That the prisoners of the Provincias del Norte, Bassein Shastee chewul,
northern districts andof the Provinces of Salsette and Bardez, including ANKEXES TO COUXTER-MEhlORI.4L (E NO. 2) 25 1
alithe Negros, shall be set free by both parties without any ransom
and that the engagements or bonds which any of the said prisoners
might have made for his ransom, shall be delivered up to the States
and shall have no effect at all.
That the merchants of Goa shall be allowed to trade freely in the
territories of Phonda, now subjected to Bagi Rao Pardone and they
shall notbe compelled to pay more duties than those which were iilways
usual, that the said merchants shall be allowed also to convey their
goods by water on the river and enjoy the liberty they always have
had heretofore without any alteration.
That the Portuguese states shall not intercede into the temtories of
the magnificent Bagi Rao, but on tlie contrary they shail maintain
with them a good intercourse and the magnificent Bagi Rao and his
chieftains shall act in the samemariner towards the dominions of the
States of the Portuguese.
That under these conditions there is established a firm peace btttween
the Portuguese States and the magnificent Bagi Rao as aIso between
the same States and Ramachandra Sam-antand Jairam Sawant, Bhonsla
and Sar Desaees of Koodal whose bramins or, officer Nurba Shenwee
son of Sivajee Shenwee, was present in this army, at the execution of
the act of settlement in those stipulations, in which he is cornl~rised,
in consequence of the protection of tlie same magnificerit Bagi Rao-
Raia .on the 27th Apnl, 1739 [signed] Antonio Carneiro Alcacao and
Joze Pedro Emans.
Part 2
Treaty of the Sarkar Rajashri Halaji Pandit Pradhan Suhur Ihide
Arbain Maya RTa Alaf. There was \var between the Sarkar and the Fi-
rangee. D. Francisco Baron Galenfes came on behaIf of Pedro Mascaren-
has D. Sandomil, Viceroy of Goa, anil captain Inchbird on belialf of
Stephen Law, the Governoi- of Bombity, and concluded the following
treaty.
(1)The administration of the Sarkar established in Salsette and
Bardez should be withdraw~i. The old fortifications of fort Coculim will
be preserved and the new will be demoIished. Military storesand supplies
wiIl be carried away to whicli the Firarigee will not obstruct.
(2) Prant Bassein, Salsette, Prant Daman, Belapur, Uran, and
Rewdanda and Korla shall not be molested by the Firangee. In like
rnanner the Sarkar will grant Salsette Bardez and Pargana towards
Daman which uill be governed by the Fisangee. No disturbance will be
caused to the territory from the Sarkar.
(3) The Firangee skia11not molest the territories that have been
obtained and will be obtained in futurc: by the Sarkar in Yrant Phonda
Jamboli, Panch Mahal, Sondha and Bitinur. -4NNEXES TO COUNTER-MEMORIAL (E NO. 2)
252
(4)The Firangee will not molest merchant vessels and tarandas from
the territory of the Sarkar navigating the sea and also the ships of the
Sarkar and of merchants importing from Mascat dates and horses. The
Sarkar's fleet will likewise not molest ships from the territory of the
Firangee navigating the sen.
(5)Both parties will release the prisoners of each otlier. Ferriale slaves
and male slaves escaping from each other's territory will be delivered.
(6)Watandars of either side who may have gone from one side to
the other wiilingly rnay be perrnitted to do so. Hereafter nobody going
from one side to the other will be given asylum. If there should be any
.disturbance from Watandars who have gone over before, they will be
punished by both sides.
(7)Military stores and provisions in the fort of Coculim will be
removed by the Sarkar with the help of begaris* from the five villages
adjacent to Coculim. The other places of Salsette will not be molested.
'(Labour). Theçe begaris will be dismissed when the stores have i-eached their
destiiiation. They will notbe detained.
(8)hlerchants in fort Rewdanda and Korla who desire ta stay behind
will be permitted to do so. Those who desire to depart will be allowed to
depart with their property. They will not be molestecl. The Firangee will
carry away in safety provisions and other stores.
(9)The forts of Daman and Sau Jatane also known as Lodhe Daman
belong to the Firangee. They will be retained by the Firangee. They will
not be molested by the Sarkar. It is agreed to grant apargana towards
the maintenance of the two forts. Accordingly the Sarkar will grant
Pargana Neher in Prant Daman. There are forts belonging to Sarkar
in the said Pargana; places contiguous to the forts will be retained for
the forts; in exchange the Sarkar will give lands and villages adjacent
to Lodhe Daman. An agent on behalf of the Sarkar and another on
behalf of the Firangee will fixplaces contiguous to the forts to be kept
by the Sarkar and the places to be granted inexchange.
(IO)The Firangee will render al1kind of help to the Sarkar in its war
with the Angrias.
(II) The vessels of the Sarkar which are ready or are under construc-
tion at Asolna part and galleys and gallivats which are in the port of
Phonda, will be either brought to this side or will be carried to Sondha
ports asit suits the convenience of the Sarkar. Till then about a hundred
men will be left behind to guard the ships. They will not be molested by
the Firangee. Similarly soldiers of the Sarkar who will stay on, will not
create disturbances in the territories of Salsette and Bardez. The T'ran-
gee shall not plunder the sailing crafts belonging to traders as long as
they remain in the ports of Asolna and Phonda. The Firangee will not
obstruct or arrest the passage of ships when the Sarkar carries them away.
(12) Patels and ryots from Firangee territory that wiIl come over or
have already crossed over and Patels and ryots from the Sarkar's do-
minion that will go over or have already gone, will be permitted to do
so by both sides. This should be reciprocal. They should not be harassed.
The said Patels and ryots going away willingly, will be permitted to
do so by both sides.
(13) It is agreed to deliver the forts of Rewdanda and Korla with
cannon and ammunition. Accordingly the gates of both the forts may be delivered to the Englisti. Periding the arrivai of written notification that
Salsette and Bardez have been evacuated, the troops of the Sarkar may
be permitted tostay in the church of St. John and in the town. As soon
as notification arrives certifying that Salsette and Bardez have been
evacuated and freed, Engli5.h troops shall withdraw surrendering both
the fortresses to the represi:ntative of the Sarkar. The Saskar's agent
shaIl preparc in advance inventories and lists of artillery and ammunition
in the two places.
(14) Treaty has been concluded between the sawant and the Firangee
which both parties willobserve. In caze of violation by the sawant the
Sarkar will help the Firanget:.In case of violation from the Firangee the
Sarkar will help the sawant.
Accordingly fourteen artictes have been agreed upon. Both sides will
act accordingly. Engagements concluded before this treaty are revoked.
The present treaty will be enfosced by both parties. Be it kriown.
27 Jamadilakhar.
Annex E. No. 3
(Peshwa Da.fter. Ghadni. Rurnal 482.)
Previously a treaty betweeii the Firangee State and Shrimant Peshwa
Pant Pradhan was concluded to the effect that they should work in
perpetual arnity without interruption. Both parties havi~ig been firmly
and sincerely convinced of the necessity to continue mutual arnity
without interruption whatsciever, had entered into detailed treaties of
friendship. Much time has elapsed since then. During the intervening
period the sardars and Subliadars of both sides having actcd contrary
to the spirit of the treaty caused a cleavage in friendly rel t';Lions.
However, they were never strained so excessively by either of the parties
as to cause a complete break. Roth sides had a feeling of despair.At
that time Dom Josc Pedro da Camara arrived at Goa as Captain and
General Viceroy. He deputed Narayan Vithal Dhume to Rajashri
Madhav Rao Narayan Pant Pradhan. hfter meeting, Shrimant ordered
Rajeshri Trimbak Vinayak, Sar Subhadar, to confer with the Elrangee
Vakil, and after clearing misunderstanding, cement friendly relations.
Accordingly both sides drew uy an agreement as fo1lows:--
(1) In case the fleet of the Majestic State and of the Shrimant en-
counter each other, they will inquire iti afriendly manner of each and
will show respect by exteriding honourable reception. The Firangee
State will be given reception that is given to them by other Western
Powers.
(2) In case the fleet of the Shrimant encounters a Firangee Vesse1or
the Firangee fleet encounters a grab of the Shrimant, both sides will
behave respectfully towards each other.
(3) In case warships of the Firangee state-sibars, Galbat and small
vessels encounter the fleet of the Shrimant or vice versa both should
respect each ather. AKNEXES TO COUNTER-blEMORIAL (E NO. 3)
254
(4)In case the fleet or ship of the Firangee State have plenty of water
and fuel and the fleet of the Sarkar is deficient and if the Commander
of the Maratha fieet asks of the Commander of the Firangee fleet, the
Firangee Commander should give them. Likewise if the fleet of the
Sarkar has war material in store and if the Firangee ship or fleet run
short of small arms and demand them, the former should give them.
If one side has provisions and the other is short of them and asks for
them, the former shall satisfy the requirement of the latter, against pay-
ment of its pnce in cash.
(5)In case the fleet of the Shnmant run short of water and fuel and
should it seek refuge in a Firangee creek the Commanding Officer of
the creek will provide supplies and render al1possible help and likewise
should the Aeet ship or sibar of the Firangee State be short of provisions,
the Commanding officer of 'the creek in the territory of the Shrimant
will render al1possible help by supplying water and fuel, and if there is
shortage of provisions, the same be allowed to be carried against payment
of reasonable pnce.
(6)In case the fleet of the Sarkar encounter an enemy and engage
him and if in the meanwhiIe the fleet or a frigate of the Firangee State
arrive on the spot, the latter shall render all possible assistance and heIp
to the former provided the enemy is not an ally of the Firangee State.
The fleet of the Sarkar will act in a reciprocal manner.
(7) Any warship, vesse1or merchant ship (belonging to the Shrimant)
that shall be driven by stress of weather for shelter in a creek in the
dominion of the Firangee State, shall be offered protection from the
enemy. Al1 possible assistance shall liegiven (by the Firangee) for the
refittal of equipage of ships that may have been damaged by inclement
weather and when ready they shall be honourably conveyed to a safe
resort. In like manner the Firangee fleet or frigate or Vessel, warship,
merchant-ship shall have similar treatment in the jurisdiction of the
Shrimant.
(8) hlerchant ships of the Firangeeterritory which enter the dominions
of the Sarkar for trading purposes, shall do so on payment of (zakat)
duties in the usual manner. They will not be harassed. Traders selling
their commodities shall be permitted to carry freely foodgrains and
other comrnodities. Likewise, traders from the dominions of the Shrimant
entering those of the Firangee with their river boats shall be permitted
to sel1 in them food grains and other commodities and shall buy in
exchange whatever they want, and paying usual duties in respect of
same. They shall be permitted to return freely, without being harassed
by anybody. They shall agree to this reciprocalIy.
(9) In case merchant ships from the dominions either of the Sarkar
or of the Firangee while sailing to any port, come across the fleet of
either party or any warship or sloop, they willnot be seized on the
ground that they have no pass. They will be allowed to go unmolested
after ascertaining the origin of the country. And also, in case, an enemy
ai sea should seize any merchant craft belonging to either of the
dominions, the navy or a ship from either party shall, when coming across
them, render assistance, setting free the ships seized, which they shall
convey safely until they near their own rivers. The cornmanders acting
in this manner shall be rewarded, 1NNEXES TO C:OUNTER-MEMORIrlL (E NO. 3)
255
(IO) In case a merchant from either of the dominions hire a vesse]
from a merchant belonging to foreign territory and load it with rner-
chandise and should that vesse1 be seized by the fleet or warship of
either party, the goods aft:er inquiry will be returned to the person
concerned, and the vesse1may be retai~ied by the Captor. In like manner
should a ship frorn the territory of the Firangee be hired by a foreigner
and found carrying goods without pass, it will be released after due
inquiry. The merchandise will be dealt with in whatever manner (the
Sarkar) thinks proper. Merchant ships from the Sarkar's dominion will
be treated by the Eirangee likewise. In case foreign merchants possess
the Sarkar's but not the Firangee's permit, they may be seized. Likewiçe
ships carrying Firangee perrnits withoiit the Sarkar's pass will be liable
to seizure.
(II) The ships of China seas, from the Firangee ports, sailing the sea
and visiting ports for the purpose of trade, will not be rnolested by the
fieet of the Sarkar. They will be given a.1ossible help asother merchant
ships. , 0
(12) The Firangee'and sarkar shall direct the officers, Subhadars and
Killedars on the bordering ti:rritones of both dominionstn foster friendly
relations between the parties and those who will deviate will be punished,
(13) In case Desai, hIirast3ar or any person frorn the dominion of the
Firangee 'escapes and takes refuge in the dominion of the Sarkar and
plans treason such person shall not be allowed to do so and not be
given-asylum on the border of the respective dominions.
- (14) ieither party shall g-iveassistance,to the enernies of the other,
nor shall it help with provisions or commodities.
(15) In case a slave, male or female, escapes from the domiriion of
the Firangee officers of the Sarkar shall not punish them, but shall send
them back under escort with letter. Also the Firangee will not punish
slaves escaping from the Sarkar's temtory but will restore them tothe
Sarkar.
(16) Incase the Sarkar requires from the Portuguese ammunition,
cannon, swords or any other military stores and if these are available
with the Firangee, they shd be siipplied to the sarkar against payment
of its price in cash.
(17 )ifferences previous to this treaty will not be revived.
(18) Both parties will instruct the commanders of their respective
feets about the treaty directing them to observe the sarne. So also both
parties shall instruct Kamavisdars, Sul~hadars. In case, either party fails
to observe the treaty, the matter wiU be taken up by the envoys of the
respective Governments. The party which will be found to have deviated
from this agreement shall satisfy the other party by removing mis-
understanding and the person who shall be found guilty willbe puilished.
There wilI be no ground for disturbiiig friendly relations.
(19) When either of the two parties (commands a small force)becomes
weak, the other shall not start a quarrel but shall help according to the
articles mentio~ied above. Neither will commit aggression on the other.
Both will behave in a friendly and sincere manner.
(20) In case the Firangee needs troops or infantry for defending
thernselves against an enemy the Sarkar will send the~n on payment
according to conlienience.256 ANNEXES TO COUNTER-MEMORIAL (E SO. 4)
(21) Accordingly agreement is drawn up. The Firangee shall conclude
the same cerernoniously according to his custom and shall seal and
sign it, The Peshwa shail put his seal on this agreement cerernoniously
according to his custom and shall deliver it to the Firangee and the
Firangee shall deliver it to the PeshwaOn the delivery of these copies
to each other, both parties shall issue instructions to this effect to the
Amaldars, Subhadars or Commanders of the navy of respectivedominions
and a notice by the Public crier shall be circulated in both dominions
so that nobody shall act due to ignorance contrary to this agreement
and there shall beno reason for breach of friendship. This shall be good
for the benefit of both.
Annex E. No. 4
(Deccan College Collection, Paper1.)
To the great Sakharam Bhapant from Dom Jose Pedro Da Carnara
Governor and Captain General of tlie Portuguese State of India.
1 am in receipt of your letter and have noted its contents.
After arriving here 1despatched to your court Narayan Vithal Dhume
to express my friendly sentiments towards your Government. Even
though we are on good terms with Royal powers here and even though
they wished and stillwish, we did not help them nor allowed them to
enter the ports in our jurisdiction. We have reserved this honour for the
Peshwa. In consequence according to agreement made with Narayan
Vithal Dhume to give Pargana in the vicinity ofDaman, the same may
be given to the state. We desire that your honour will decide to effect
this for increasing friendship.
Seven ships have been released, but the agreement about restoration
of their equipage has not beenobserved. Reparations for the same may
be made.
It was agreed to give Rs. 12 oao/-- icompensation for the timber of
the ship.I desire you to issue necessary instructions for payment of the
same and the river boats seized at Ratnagiri may kindly be restored
with their equipage.
On agreeing to this, a treaty of lasting friendship wihe concluded
between the two countries. May the Almighty extend his protection to
your Highness.
Dated 21 January 1777.
Dom Jose Pedro DACAMARA AENEXES TO COUNTER-MEMORIrlL (E NO. 5)
257
Annex E. No. 5
SECOND DRAFT OF THE PROPOSED TREATY,
21st OCTOBEF 1:,77
(Peshwa Daftar. Ghadni. Rumal 477).
Copy of the Treaty agreed
to by the Sarkar.
Treaty of agreement of the Sarkar of Rajeshri Madhav Rao Pandit
Pradhan in the year saman sabain Maya Wa Alaf (1777).
Narayan Vithal Dhume fiaving corne to court from the Portiiguese
Viceroy of Goa, Dom Jose Pedro da Camara, conveyed desire of the
Firangee for friendship. Accordingly an agreement for treaty is drawn
up. The articles are as below:
(1) In case the fleet of the sarkar encounters the fleet of the Fii-angee
or a ship or in case a ship of one of tht: parties meets the entire Aeof
the other, they shall behave in a friendly manner.
(2) In case the fleet of the sarkar and of the Firangee meet at sea
and if one isshort of water and fuel and the othekas them in plenty the
latter shall satisfy the requirements of the former. In theame manner
if one is short of stores and the otheh:isthem inabundance, the latter
shalI satisfy the requirements of the former against payrnent of price in
cash. This shall be dotie reciprocally.
(3)The fleet of the sarkar shall not molest ships of the China seas
from the ports of the Firangee, bringing merchandise, and sailing the
seas for purpose of trade; neither shall the Firangee molest the fleeof
the sarkar sailing from his pcirts to trainthose of China.
(4)The female slaves and male slaves who will escape frorn the
territory of the sarkar shall be delivei-ed to the sarkar. This shall be
done reciprocally.
(5)Disputes prior to this treaty shall not be reviveby both parties.
(6) Differences in respect of the present agreement will be settled by
negotiations through envoys. Both parties toact accordingly.
(7)Merchant crafts, provision ships and river boats which enter the
dominion of the sarkar froni those of the Firangee, loaded with com-
modities for trading purposes shaii be permitted to do so on payrnent of
Zakat to the sarkar as usual. These shiill not be molested by anybody.
The traders selling their cornmodities shall be permitted to carry freely
food grains and other commodities. Likt:wise traders from the dominions
of the sarkar entering those of the Fira.ngee with their river boatsand
provision ships shall be pernlitted to sel1their commodities and huy in
exchange whatever they want paying duties in respect of the same in
the manner practised from the previou:; years. They shall be permitted
to return freely without being harassed. This is reciprocal.
(8)In case merchant ships from the dominions of the sarkar and ofthe
Firangee moving along the coast to visit ports fa11in with the fleet of
either party or with a man-of-war, they shall not be intercepted for not
carrying pass (Kaul). They shall be allowed to pass unmolested. In case
18an enemy is sighted seizing a merchantship belonging to either domin-
ions,the fieet or ship of either of the allies which cornes acroçs, shall
exert to the utmost to rescue the captured ship, and convoy it to safety.
The commanders acting in this manner shall be rewarded by their
superiors.
(9) When the Aeet of the sarkar encounters an enemy and commences
an action and if in the meanwhile the fleet andthe frigates of the Firangee
arrive on the scene, the latter shall render assistance and help to the
Former, in case the said enemy is not an ally of the latter. This is reci-
roca al.
(IO)This agreement between the sarkar and the Fira~igee shallbe
conveyed to the officers of the bordering territories and to the fleets
directing them to observe the same and, in case the mamlatdars fail to
cornply, necessary measures will be taken. This shaIl3bedone reciprocally.
(II)In case rich Zamindars or any other persons from the dominion
of the Firangee try to create disturbances or form confederacies in the
said dominion, they shall not be allowed to do so; Traitors will not be
permitted to stay within the borders of their dominions. This shall be
observed reciprocally.
(12)The enemy of the sarkar shall not be given aid by the Firangee
nor shalI be supplied with provisions.In the sarne manner the sarkar
shall not supply war material or provisions tothe enemy of the Firangee.
(13)~hen either of the two parties becomes weak the other party
shall not pick up quarrel on flimsy grounds but will act sincerely accord-
ing to the agreement.
(14 ) he Firangee will not bring with his own convoys ships other
than from his own ports nor will he permit the use of his Aag by other
ships.
(15)Soldiers from the sarkar's dominion seeking refuge in the do-
minion of the Firangeeshallnot be given asylum; they shall be delivered
to the sarkar. In like manner if the sepoysin the dominion of the Firangee
escape and take refuge in the dominion of the sarkar, they shall be
delivered to the Firangee.
(16) The Firangee shall not allow Raghunath Rao to enter his do-
minion, nor stay in it; neither sfiallhe afford him aid or provide hirn
with supplies of any kind. .
Narayan Vithal Dhume Firangee envoy having corne to Huzur a
treaty of sirteen articles has been drawn up. Accordingly a treaty be
concluded.
Annex E.No. 6
TRANSLATI OFNTHE LETTER OF MADOI JAO TO THE GOVERNOR
(Arch. da India, livro20.de Pazes, fol. 413)
To the Tllustrious owner of the great State, and Moulder of Fate, the
Grand Dom Frederico Guilherme de Sousa, Governor of the Ports of
Goa, whose friendship may be evcrlasting.
1Translation fromthe Portuguesetext in theCollection of Biker, Vol. VIII,
page 72, ANNEXES TO COUKTEK-hlEYORIAL (E NO. 7) *59
After expressing rny great friendship1 Say that 1 am extremeIy .happy
to hear from the lips of the estcemed Narayan Vithal, that you have been
entrusted with the Governrnent of those ports, and he spoke to me also
of the virtues of your prudence and of your distinguished personality.
The Grand D. Jose Pedro da Camara, former Governor of those ports,
sent, for the purpose of strengthening the friendship of Iny Sarkltr, the
Treaty of agreerncnt, which was given to my Sarkar by Naryan Vithal.
Now, 1 have directed that the Treaty of Agreement, on the part of Iny
Sarkar, may be handed ovei- to the above named, who will despatch it
to you, and 1 request you io acknowledge receipt of the sarne,, and 1
desire the reciprocal observance of what has been agreed. And as atoken
of my friendship I send you five pieces of cloth, specified, in a separate
list, which will reach there. JVritten on the 13th of the montof Gilahez,
which in Portuguese corresponds to ~3rd December. I shall not proceed
fiirther and this ithe letter.
(Arch. da India, li~~odas Moiicoes, no: 161, fol.417)
Most Illustrious Excellenc y,
My predecessor sent Narayan Sinai Dumo, Envoy on behalf of the
Majestic State to the Court of Poona, of Madhav Rao Pandit Pradhan,
Ruler of the Marathas, in order to discuss and conclude the negociation
ofpeace and interests of the State. ThEnvoy had discussed the clauses
but when I assurncd office, the agreement had not yet been made and
concluded; as soon as 1 took cognizance of everything, 1issued instruc-
tions to the said Envoy to request and conclude the Agreement and
Treaty.
Madhav Rao, RuIer of the Marathas, signed the Treaty and forwarded
it tome, with tlie requestha.t Ishould approve it.approved and signed
it, as it seemed convenient iii the public interests of the State.
As a result of rcpeated steps taken arid letters addressecl to tMinis-
try of the said Court througli our Envoy, we received drafts, so that by
one remittance 15,500 rupees were paid, and by another j,oOû rupees,
totalling 20,500 rupees, with the advance of 3 per cent. Al1this has been
collected and credited to the Royal Exchequer; the said advance pro-
ceeds from the higher value of the Maratha rupees over Goa rupees.
The remaining amount, as promised in the Treaty has not yet been
paid, nor the villages near Daman have been handed over, despite
repeated reminders, because of the doubts raised by Subedar Vassagi
Pant, administrator of the said villages,in the execution of the Sanads,
or orders of the said Madhav Rao; nor can they be hancied over now,
in view of conquest made in them hy the British; Howevcr, the Ministry
Translationfrom the Portuguesetext inthe Collection by Biker, Vol. VIII.
at page 71.260 ANNEXES TO COUNTER-MEMORIAL (E 50. 8)
of the said Court promises to Iiand over other villages, yielding income
in the amount mentioned in the Treaty, even though they may not be
situated near the jurisdiction of theaid city of Daman, towards which
end I am negotiating through the said Envoy.
1 enclose herewith the copies of the Ietter of Madhav Rao and the
Treaty; of which 1inforrn you, in order that it being submitted to Her
hlajesty, she may decide what she thinIcs is the best. May God preserve
you. Goa, dated the 1st January 1781-
Initials of the Governor.
Annex E. No. 8
(Arch. da Tndia, livro das Moncoes, no.163,fol.115)
Your letter sent along with the transIation of the Treaty concluded
with the Marathas has been subrnitted to the Queen, Our Lady, and
though someclauses of theTreaty have been badly translated, and cannot
be understood, ,however, from what one can infer from them, it would
appear that this agreement is suitable to us; accordingly Her Majesty
has found fit to approve the said Treaty.
As regards to what you stated that the said Marathas have not handed
over the villages near Daman, which villages they are unable to hand
over, because the British have conquered them, from the information
which is available to us here, it wouldappear that the British conquest
did not go beyond Bassein and its surrounding pIaces and jurisdiction;
they have not also extended up to the District of Daman; and if it issa,
you must insist that the clauses of the Treaty shoülbe fulfilled with the
handing over of the villages closeo Daman, which may be more suitable
owing to their nearness. However, in case you find it impracticable to
obtain the villages, which have been promised, you may accept others
which might be offered yieIding the same revenue, furnishing a list,
containing their names and situation.
May God preserve you.-Palace of Our Lady of Ajuda, dated the
27th February, 1782.
Martinho de Mello e Castro.
Senhor Dom Frederico Guilherme de Sousa (2nd route)
l Translationfrom thePortuguese textinthe ColIection by BikeSroI .III,
"tpage 94. ANNEXES TO COUNTER-MEMORIAL (E KO. 9) 261
Annex E. No. g
The Governor and Captaiii General,D. Frederico Guilherme de Sousa,17''
reported to Her Majesty, through the office of the Secretary of State
for Maritime and Overseas Dominions, on the 1st January, 1780,
enclosing a copy of this treaty. Her Majesty made in the Treaty some
alterations, which can be seen at the inargin of the same copy, filed in
"book of the Monsoon of the Kingdom", 1784-answered in 1782-
enclosed in the letter othe same officeat page 883 etseq.The -4ngria
of Culabo having been informed of tliis decision, hedid not agree to
those alterations, and, therefore, the Treatdid not corne into force.
(Arch. da India, livro 2.0 de Pazes, 26l2)
[Then follows the Text of Treaty of Januar7, 17781
TRANSLATIO ONF THE SAME TREATY ACCORDING TO THE MARATHT AEXT,
WHICH CAME FROM CULARO.
(Arch. da India, livr2.0de Pazes, fol. 261)
[Then follows the Treaty of 20th February17781
TRANSLATION OF THE LETTEK FROM RAGOGIANGKIAVAZARATMAB
SARQUEL L,ORD OF CULABO ,O THE VICE-ROY, IN WHICH HE SAYS AS
FOLLOWS.
(Arch. da India. livr2.0de Pazes, fol386)
[Then follows the Text of the letter of 20th February, 17783
LETTER FROM THE SECIIETARY OF STATE,MARTINHO DE MELLO E CISTRO,
TO THE GOVERNO ROMFREDERICO GUILHERM EI:s0Us.4
(Arclida India, livrodasMoiicoes, n.0.162fol.833.)
"1 took to the Royal presence of Her Majesty your letter, dated
1st January, 1780, in which the copy of Treaty concluded by your prede-
cessor with thepetty King Ragogi A~igria was enclosed. Her Majesty
ordered to make in the Treaty alterations, which can be seen at the
margin of the copy of the same, which 1 enclose herewith. You will
1TranslationfromPortuguesetextgiven in the CollectiBiker, VolVIII,
atPage 47.
In th~s Treatythe Portuguesand Maratha Texts follsideby side. ANNEXES TO COUNTER-MEBZORIAL (E NO. 9)
262
communicate these alterations to the said petty King to the effect that,
if he agrees, the Treaty may corne into force; if lie does not agree, you
willconsider it nul1 and void. You will find lierewith copy of the letter
that 1 have written to the said petty King, whicti is also enclosed here-
with so that you inay forward it to him. God may keep your Excellency.
Palace of Our Lady of Ajuda, March 7, 1781-Martinhode Melloe Castro,
(to)Governor Dom Frederico Guillierrne de Soiisa."
TREATY OF PEACEAKRANGE DETWEEN HIS MOST ILLUSTRIOU ESXCEL-
LENCY DOM PEDRO D4 CAMARA G,OVERNO AND CAPTAIN GENERAL OF
INDIA, AND THE MAGNIFICENR TAGOG .INGRIA VAZARATMA SABRQUEL,
LORD OF CULABO C,HECKED BY FATHISR FR. LEANDRO DA MADRE DE
DEUS.
(Arcti da India. livro Moncoes, n162,fol.884.)
I. In case of any encounter betwee~i the In case, however, that
fleet of theMajestic State, or any other tlley should net make
armed vessels from the strongholds of themselves known, and
Dio and Damgo, with the fleet of Culabo, the vessels of the state
the lattershall make themselves known, should attack their fleet,
by a smail gallevat, and both fleets shall they shalllotbreak the
cooperate in showing the friendship which Peace on this account.
subsists.
z. The vessels of Culabo shall corne and go They shall receive al1
freely, in the port of Goa, and resort to possible good treatment,
those of Dio and DamXo for the benefit of every facility being
their commerce, but must be provided allowed, which may con-
with a passport from the Magnificent tribute to their com-
Ragogi Angria, Lord of Culabo, showing merce, and safety in the
that they belong to his subjects. said ports.
3. The vessels of the subjects of the They shall receive a11
Majeçtic State shalI likewise trade freely possible good treatment,
in the ports of Culabo, whether from this every facility being
city, or from Dio and Damgo, carrying allowed, which may con-
passports from the state,and from their tribute to their com-
respective Governors. merce, and safety in the
said ports.
4. When by chance the fleet of the Mag- Approved.
nificent Ragogi Angria, Lord of Culabo,
puts into this port Goa, or those of Dio
and Damgo, they shall be well received,
and permitted to buy at the fair price,
whatever they stand inneed of; and the
çame shall be practised in the ports of
Culabo with respect to the fleet, and otlier
vessels, from Goa, Damgo and Dio.
5. Should the fleet of Culabo enter any of The said prizes not be-
the ports of Goa, Dnmao and Dio, with longing to Sorttiguese ANNEXES TO COUNTER-MEMORIAL (E KO. 9)
263
any prizes of ships or other craft, these not subjects, or to powers
belonging tothe dominions of the Majestic allied to the crown of
State, no impediment shall be put in tlieir Portugal.
way; and in case the fleetcithe Majestic
State, shouid meet ttie said fieet of Colabo,
with the said prizes, on the north or south
coast, both shall show ttieir flags and
saluting w-ith one gun, bofh shall proceed
upon their course, without interferingwith
each other, or with the prizes.
6. When the Magnificent Ragogi Angria, Denied.
Lord of Culabo, shall stand in need ofthe
aid and succour of tlieMajestic State? he
shall request them to render it, and the
same shall be practised by the Majestic
State, in case of like necessity,and both
parties shall reciprocally observe this
article.
Two copies shall be made of the present The copies must be sep-
Treaty, which shall be of a similar teilor, arately signed by the
and shall be signed and sealed, and for commissioners, and in
their reciprocal observance and perpetual bot11the Majestic State
fulfilment, and forthe preservation of the isto have precedence in
firm friendship which must subsistbetween speriking.
the two parties, oneof the said copies shall
be remitted to the Magnificent Ragogi
Angria, Lord of CuIabo, and the other shall
be preserved in the office of the Secretary
of the Majestic State, Goa, 7th of Janciary
1778 . .Jose Pedro da Camara. Fe1ir:iano
Rarnos Nobre Monrao.
LETTER OF THE SECRETART OF THE STATE TO ANGRIA
(Arch. da India, livro 1.0 de Pazes, fol. 890)
(Then follows the Iéxt of the letter of March .7,1781)
EETTER FROhl THE GOVERKOR OF INIIIA TO THE SECBETARY OF STATE
MARTINHO DE MELLO E CASTRO
(Arch. da India, livro2.11 de Pazes, foI. 894)
Most Illustrious Excellency :-
By a letter of the 7th of March Iast year, your Excellency inforrned
me that having placed rny letter of the 1st ofJanuary of the year 1780,
before her Royal Majesty, together with the copy of the treaty entered
into by my predecessor, with the petty king Ragogi Angria, which
accompanied it. Her said Majesty ordered such alterations to be made
in the said treaty, as appeared from the notes in the margin of tlie copy
returned to me, ïvhich 1 was to cornmimicate to the sâid king, and upon his agreeing thereto the treaty shouldbe effectual, and should he refuse
to do so, 1 should hold the said treaty to be null and void. Enclosed
1 should finda letter to the said petty kifrom your Excellency, which
1 was to forward to him.
I executed the royal orderç, writing to the said petty king, and
remitting tohim the letter from your Excellency, andthetreaty with the
alterations which appeared from the notes placed in the margin of the
different articles thereof; declaring thathefagreed thereto the treaty
should corne into force, and should he not agree 1 would hold it to be
nu11and void. The said petty king did not agree, and, therefore, the
said treaty is null and void. Of which I inform your Excellency that
Her Majesty may order according to her pleasure. God keep your
Excellency. Goa, 8th of Narch 1782.
Signature of the Governor.
Annex E. No. IO
Shri COPY
26 Aari~ 1799 Bajirao Raghunath Pradhan to the Collectors of Zakat of Mahals in
District Bassein dated Tisa Tisain Maya Alaf.
Pargana Kagar Haveli has been assigned to the Firangee of Goa by
the Sarkar as Saranjam near Daman. He carries food-grains, teak-wood,
etc., from there to Daman by water and by land. Though such is the
practice from the past ithas been communicated to the Huzur that
you have started harassing him in respect of ZaIcat. Hence this letter
is being addressed to you. Therefore the Firangee of Goa will carry
from the pargana to Daman by water and by land food-grains and teak-
wood. He should not be pressed for Zakat. Be this known. Dated
26 Zilkad. Orders be executed. (Seal in writing.)
Raj Shaka Chaitar liadya 14,
Annex E. No. 11
LETTER FROM A PORTUGUESE SECRETARY AT GOA TO
VITHAL RA0 GORAKSH. 7th JULY, 1798 '
TO THE BNVOY VJTHAL RA0 GORQUI.
1 received your letters, dated the 20th of the last montIlas well as
the copies, encIosed therewith, of the Sanad and Orders which were
issuedby that Sarkar in respect of the disputeabout the Pragana Nagar
Haveli, and having submitted everything to His Excellency, the latter
lAgentes Da DifilomaciPorluguesaNa Iwdia by P. PissurIencar, Tipografia
Rangel, BastorsGoa, 1952at page 484. ANNEXES TO COUNTER-MEMORIAL (E NO. II) 265
took due note of the good work performed by you, which is quitc in
keeping with the zeal that you have always been showing in "promoting
the interests of the State" and 1 hops that with the production of the
Sanad the same Pragana !vilbe freed.
His Excellency has immediately issued the Order to the Treasurer
General of the Court to pay to your son the amount of five hundred
and sixty-one rupees, which you have spent in gifts, and yeiiterda1
sent notice to your son to take de1iw:ry of the said order of payment
and to deal with the matter of collecting the amount.
Now that the Pragana has been restored and since the person sent
by Ambruta Rao is carrying a letter from the Ruler to His Exceiiency
by the same formality, with which he came on account of the gun
powder, the same Excel1en~:ywill take into consideration the proposal
of the above mentioned Ambruta Roa, the latter paying the value of
the commodities which he desired to obtain, at the time of delivery,
effected to the person who cornes to take them, and this is tht: reply
that His Excellency directs to be giveri on this matter, because without
intervention of the Ruler the above mentioned commodities carinot be
sold, since they must be considered as having been purchased 11ythat
Sarkar.
Goa, dated the 7th July, r798.-Jose Caetano Pacheco Tavares.
(Book of the Neighbouring Kings, No.: 19, page 94 reverse).266 AXNEXES TO COUNTER-MEMORIAL (E NO. 12)
Amex E. No. 12
TREATY BETUTEN THE HOKORABL EEAST INDIA COMPANY AND HIS
HIGHNESSBAJEE RAORUGHOONA TAKOPUNDIT PRUDHAN, HIS HEIRS
AND SUCCESSORS, CONCLUDED AT POONA, ON THE I3TH OF JUNE 1817,BY
THE HONORABLE M. ELPHINSTON ON,THE PART OF THE HONORABLE
COMPANY ,ND BY MORO DIXIT AND BALAJEE LUXOOMA NN,THE PART
OF THE RAOPUNDIT PRUDHAN, BY VIIITUE OFULL POWERS FROM THEIR
RESPECTIVE GOVERNMENT lS
PREAMBLE.-%'~~S~~Sa Treaty of General Defensive Alliance,
consisting ofXIX. Articles, was concIuded at Bassein, between the
Honorable East India Company and His Highness Rao Pundit Prudhan
Bahadoor, and whereas seven Articles of Agreement, supplemental
to the said Treaty, were agreed on at Poona, between the sarne Powers:
and whereas certain disputes hasince arisen, which it is the desire of
both parties toemove; with a view to adjusting the said disputes, and
to the better fulfilment of the said alliance, the following Treaty has
been concluded between the two States;-
ArticleI
Whereas Trimbukjee Denglay, by the murder of Gungadhur Shastree,
the public Minister of the Gaekwar State, rendcred himself obnoxious
to public justice, and it became the peculiar duty, both of the Honorable
East India Company's Government, and of that of His HighnessRao
Pundit Prudhan Bahadoor, to inflic011him such punishment as rnight
mark theirdetestation of his crimes, and deter others from cornmitting the
the like atrocities;d whereas Trimbukjee Denglay has escaped from
the custody of the Honorable East India Company's Government, to
which he was made over by Rao Pundit Prudhan Bahadoor, and has
since added to his crimes by assembling banditti and committing various
actsof plunder and murder, His Highness Rao Pundit Prudhan Bahadoor
solemnly engages never to afford to the said Trimbukjee any countenance
or protection whateverbut to use his utmost efforts to seize and deliver
him up to the Honorable East India Company; and until such time as
said Denglay may bedelivered up, the family of the said Denglay are
to remain as hostages in the hands ofthe Honarable Company's Govern-
ment. His Highness Rao Pundit Prudhan Bahadoor also engages
severely to punishl1who participated in the said Trimbukjee's rebellion,
and who have not surrendered themselves according toHis Highness'
Proclamation.
Article II
Al1ArticIes of the Treaty of Bassein, and of the supplemental Articles
concluded at Poona, which are not contrary toe tenor of the present
Engagement, are herebyconfinned.
l Treaties, Agreements, and Engagements, bthe Honorable East India
Company and the Native Princes, Chiefs, and States, in WeTherRedndia;
Sea; The Persian Gulf; etc. also between Her Britannic Majesty's Government. and
Persia, Portugal, and TurkeR.HUGHESTHOMAS-Bombay, 1851,-page 530. ANNEXES TO COUNTER-MEMORIAL (E NO. 12) 267
Article .III
By the XI. Article of the Treaty of 13assein,His Highness Rao Pundit
Prudhan Bahadoor engages to dismiss al1 Europeans, Natives of States
at war with Great Britain, who sh;~ll meditate injury towards the
English. His Highness Rao Pundit Prudhan Bahadoor iiow engages
never to admit into his territories any subject of any European or
American powers whatever, without the previous consent of the British
Government.
Article .IV
Ry the XVII. Article of the Treaty of Bassein His Highnejs Rao
Pundit Pmdhan Bahadoor engaged rieither to commence nor pursue,
in future, any negotiations with any Powers whatever, without giving
previous notice to, and entering into mutual consultation with the
Honorable East India Conipany's Government. In order to the more
effectua1 fulfilment of this Article,is Highness Rao Pundit Prudhan
Bahadoor hereby engages neither to rnaintain Vukeels or other Agents
at the Court of any Power whatever, nor to permit the residence of
Vukeels or other Agents from any Power whatever at his Court; and
His Highness further engages to hold no communication with any Power
whatever, except through the Resident or other Minister of the Honor-
able Company's Governmerit, residing at Kis Highness' Court: and His
Highness Rao Pundit Prudhan Bahatioor hereby, for himself, and for
his lleirs and successors, reccignizesthe dissolution, in form and substance,
of the Muratha Confederacy, and renounces al1connexion whatever with
the other Muratha Powers, whether ai:ising from his former situation of
executive head of the Muratha Empire, or from any other cause. Nothing
contained in this Article sh;ill affect any rights which His Highness Rao
Pundit Prudhan Bahadoor may possess over any Chiefs of the Muratha
State, between the rivers Nurbuda and Toongbhudra, and to the West
of the Western frontier of His Highness the Nizam's dominions, who
are now in obedience to His Highneso Rao Pundit Prudhan Bahadoor.
His Highness, however, renounces al1 claims on the Raja of KolIiapoor,
and on the Government of Sawunt Warree, and engages to advance no
claims on the lands of their Highnesses Sindia, Holkar, the Raja of
Berar, and the Gaekwar, which may be situated within the limits before-
mentioned.
Article V
His Highness Rao Pundit Prudhan Bahadoor specially renounces
al1future demands on His Highness Raja Anund Rao Gaekwar Baliadoor,
whether resulting from the former suprernacy of the said Rao Pundit
Prudhan Bahadoor, as executive head of the Muratha Empire, or from
any other cause; but as various dernands and papers of accounts, arising
from certain unfinished tra.nsactions, subsist between the Government
of His Highness Rao Pundit Prudhai Bahadoor and the Government
of the Raja above mentiontid, which His Highness Rao l'undit Prudhm
Bahadoor ageed, by the XIV. Article of the Treaty of Bassein, to sub-
mit to the arbitration of the Honorable Company's Government, those
demands are hereby declared to be in force, as far as relates to past
times; but His Highness Rao Pundit Prudhan Bahadoor now consents,
that in the event of the payrnent of the annual suof four lacs of Rupees, 268 ANNEXES TO COUNTER-MEMORIAL (E NO. 12)
by Raja Anund Rao Gaekwar Bahadoor, the above Agreement shall be
set aside, and the said Raja shall be discharged from al1claims whatever
on the part of the said Rao Pundit Prudhan Bahadoor. In case His
Highness Raja Anund Rao Gaekwar Bahadoor should not consent to
the payment of the annual sum of four lacs of Rupees, then the Agree-
ment above-mentioned, which forms part of the XIV. Article of the
Treaty of Bassein, shall remain in force, and binding on both parties,
but Ris Highness Rao Pundit Prudhan Bahadoor hereby distinctly
renounces al1 future claims on His Highness Raja Anund Rao Gaekwar
Bahadoor.
Article VI
In the IV Supplemental ArticIe to the Treaty of Bassein, it is agreed,
that in time of war, His Highness Rao Pundit Prudhan Bahadoor shall
appoint and furnish five thousand Cavalry and three thousand Infantry
with a due proportion of ordnance and military stores, to join and act
with the British subsidiary force; and, in addition thereto, His Highness
agrees toempioy in the war such further force as he shall be able to bring
into the field. That Article is hereby annulled; and in lieuthereof it is
agreed that Wis Highness Rao Pundit Prudhan Bahadoor shall place
at the disposa1 of the British Government sufficient funds for the pay-
ment of a force of five thousand Cavalry and three thousand Infantry,
and the provision of a due proportion of ordnance and military stores;
on the fulfilment of which engagement the British Government shall
have no future claim to the services of the contingent above-mentioned.
But His Highness Rao Pundit Pruàhan Bahadoor shall still be bound,
as fomerly, to CO-operatein the war, with such a force as he rnay bbeable
to bring into the field, the Honorable Company, in the same manner,
engaging to employ in active operations against the enemy, the largest
force which they may be able to furnish over and above the subsidiary
force.
Article VI1
To enable the British Government to supply the place of the contin-
gent above-mentioned, His Highness Rao Pundit Prudhan Bahadoor
hereby assigns and cedes, in perpetuity, to the Honorable Company,
al1 the territories and rights detailed in the Schedule annexed to this
Treaty; and I-IisHighness expressly renounces al1claims and pretentions,
of whatever description, on the countries enumerated in the said Sche-
dule, and al1connexion with the Chiefs and Bhoomeas of those countries.
Article VI11
As it hay be found that certain of the territories ceded by the fore-
going Article may be inconvenient, from their situation, His Highness
Rao Pundit Prudhan Bahadoor, for the purpose of rendering the boun-
dary line a good and well defined one, agrees that such exchanges of
Talookas and lands shall be made hereafter,on terms of a fair valuation
of their respective revenues, as the completion of the said yurpose may
require; and it iç agreed and covenanted that the territories to'be
assigned and ceded to the Honorable Company, by the VII. Article, or
in consequence of the exchange stipulated eventually in this Article, ASSEXES TO COUKTEH-hIEMORIAL (E NO. 12) ~~9
shall be subject to the exclusive management and authority of the said
Company and their Officerç.
Article .IX
His Highness Rao Pundit Prudhan Bahadoor will immediately
issue the necessary Pumanas, or orders, to His Highness' Officers to
deliver over charge of the districts cecled by Articl1'11.to the Officers
of the Honorable Company; and it is ilereby agreed and stipulated, that
al1 collections made by His Highness' Officers, subsequently to the
commencement of the Hindoo year (iinswering to the 5th June, 1817,
A.D.) shall be carried to the credit of the Honorable Company, and
.al1claims to balances from the said districts, referring to periods antece-
dent to the conclusion of this Treaty, shall be considered as nul1 and
void.
Article X
Ail forts situated withirt the districts ceded as aforesaid, shall be
delivered to the Officers of the Honorable Company, with the said
districts, and His Highness Rao Pundit Prudhan Bahadoor engages that
the said forts shall be delivered to the Honorable Company ~vithout
being injured or damaged.
Article XI
It is further agreed, that if disturbances shaat,any time, break out
in the districts cededto the Honorakile Company, by this Agreement,
His Highness Rao Pundit :Prudhan Bahadoor shall permit such a pro-
portion of the subsidiary troops, as rnay be requisite, to be employed
in quelling the same withiri the said districts.
Article ;YI1
His Highness Rao Pundit Prudhan Bahadoor, on his own part, and
on the part of his heirs and successors, hereby cedes to the Honorable
East India Company,in perpetual sovereignty, theFort of Ahmednuggur,
together with as much of the adjoining country as may be within (2000)
two thousands yards of the Fort, rneasured from the foot of the glacis.
His Highness Rao Pundit Prudhan Rahadoor engages to furnish such
pasture lands as may be required for the use of the subsidiary force, at
the most convenient place ~tdjoiningto the cantonments of the different
divisions of the said force; and although, by the spirit of the Treaty of
Bassein, the British Government is already entitled to send such troops
into His Highness' territories as may :ippear requisite for the fulfilment
of the terrns of that Treaty, yet, to remove al1 doubts on that point,
His Highness Rao Pundit Prudhan Bahadoor further engages to admit
the residence, within his dominions, of any number of British troops,
in addition to the subsidiary force, that the British Government may
think necessary, and to permit al1 British troops to pass through al1
parts of his dominions without obstruction, provided that nothing in
this Articleisto entitle the British Government to make any demand on
His Highness for the expense of the additional troops so residing. 270 ASSESES TO COUSTER-MEMORIAL (E NO. 12)
Article XII1
His Highness Rao Pundit Pnidhan Bahadoor hereby cedes to the
Honorable East India Company al1 his rights, interests, or pretentions,
feudal, territorialor pecuniary, on the province of Bundelkund, in-
cluding Saugur, Jhansi, and the lands hcld by Nana Govind Rao, and
ag-reesto relinquish al1connection with the Chiefs in that quarter.
Article XIV
His Highness Rao Pundit Prudhan Bahadoor, for himself, and for
his heirs and successors, hereby cedes to the Honorable East India
Company al1his rights and territories in Malwa, which were secured to
him by the 11th Article of theTreaty of Surje Anjungaum, and generally
al1rights and pretentions of every denomination, which he may possess
in the country to the North of the river Nurbuda, escepting those which
he possesses in the province of Guzerat; and engages never more to
interfere in the affairs of Hindoostan.
Article XV
His Highness Rao Pundit Prudhan Bahadoor forrnerly rented Iiis
share of the city and province of Ahmedabad, including the tribute of
Katteewar, to Bhugwunt Rao Gaekwar, at the rate of four lacs and a
half of Rupees per annum, and granted a Sunud to that effect under
date the twenty-seventh Juma-dee-001-akhur (1205) one thousand two
hundred and five. The tribute of Katteewar, forrnerly comprehended in
that farm, has been ceded to the British Government by the VII.
Article of the present Treaty. His Highness now agrees to grant the
remainder of the said farm, in perpetuity, to His Highness Raja Anund
Rao Gaeliwar Bahadoor, and to his heirs and successors, on the same
terms as those contained on tlie above-mentioned Sunud, dated the
twenty-seventh of Jumadee-001-Akhur, A.H. one thousand two hundred
and five (rzog), excepting the terms contained in the II., VIII., XI.,
anclXV. Articles, which are he~ebyabrogated and annulled. In consider-
ation of the greatness of the actual revenue of the city and province of
Ahmedabad, and likewise of the loss to which His Highness Rao Pundit
Pmdhan Bahadoor has already been subjected by hjs renunciation of
al1future ciaims on His Highness Raja Anund Rao Gaekwar Bahadoor,
and by his accepting an annual payment of four lacs of Rupees in lieu
of al1 claims actually due up to the present day, it is agreed that the
former sum of four lacs and a half of Rupees shall still be paid for the
farm of Ahmedabad, notwithstanding the 5eparation of the tribute of'
Katteewar.
Article XVI
Whereas certain Articles of Agreement (VI in number) regarding the
settlement of the Southern Jageerdars, were presented by the Resident
at Poona to His Highnesç Rao Pundit Prudhan Bahadoor, on the 6th
of July, one thousand eight hundred and twelve (1812) A.D., to which,
after a modification suggested by His Highness, and submitted to him
on the scventh of thesame month, His Highness gave his entire consent;
Those Articles are hereby recognized and declared to be binding on ANNEXES TO COUNTER-MIZMORIAL (E NO. 12) 271 -
both parties, as much as if they formed part of thc present Treaty; and
whereas various disputes have arisen, regarding the mustcr of the troops
of the said Jageerdars, and the mannei and periods of their service, His
Highness Rao Pundit Prudhan Bahadoor hereby agrees tu be guided
entirelyby the advice ofthe British Government with regard tcithose
subjects, and to issue no orders to the Jageerdars without full concert
with the British Government. His Highness hereby agrees to restore
to the said Jageerdars any of the lands included in their Sunuds which
may now be in His Highness' possession; and in consicleration of the
recommendation of the British Government, His Highness hereby
consents to restore to Madhow Rao Rastia the Jageer formerly held by
him, and resumed in theyear one thousand eight hundred and foi~rteen,
and to permit him to hold that Jageer as formerly, under the pa.rantee
of the British Government.
~rtiile XVII
The fort and territory of Moilghaut having been taken possession of
by the troops of His Highnass Rao Pundit Prudhan Bahadoor, uithout
concert with the British Government, and His Highness' occupation
of that fortress having since occasioned various inconveniences to the
other allies,. His Highness .Ra0 Pundit Prudh,an Bahadoor engages to
withdraw his troops from Moilghaut; and he hereby renounces al1
claims and pretensions to tlie said fort and territory,and to all other
territories occupied by his troops during the expedition of one thousand
eight hundred and eleven.
Article XI7111
This Treaty, consisting ofXVIII. Articles, being this day, 13th June
18r7, settled and concluded atPoona, by the Honorable RI.Elphiristone,
Moro Dixit, and Balajee Liixoomun, Mr. Elphinstone has delivered to
His Highness the Peshwa a copy of tlie same in English, Persian, and
Murathee, under the seal and Signature of the said Honorable M. Elphin-
stone; And His Highness the Peshwa Ilas deIivered to the said Hon'ble
M. Elphinstone another copy, ais0 in English, Persian, and Mui-athee,
bearing His Highness' seal; And the Honorable M. Elphinstone, afore-
said, has engaged to procure and deliver toHis Highness, without delay,
a copy of the same, duly ratified by IGs Excellcncy the Most Noble,
Francis, Marquis Hastings, K. G., Governor General, etc. etc.in Council,
on the receipt of which, by His said Highness, the preseiit Treaty sliall
be deemed complete and binding on the Honorabie East India Company,
- and on His Highness the Peshwa, antl the copy now delivered to His
said Highness shall be retui-ned.
Peshwa's
SeaI. Peshwa's Signature.
(Signed) HASTINGS.
N. B. EDMONST~NE.
Governor General's
Small Seal. A. SETON.
G. DOWDESWELL. ANNEXES TO COUNTER-MEMORIAL (E KO. 12)
272
This Treaty was ratified by the Governor General in Council, this
fifth day of July, one thousand eight hundred and seventeen, at Fort
William in Bengal.
(Signed) J. ADAM,
Acting Chief Secretary to Government.
Schedule alluded to in Article VII. of the foregoing Treaty
Schedwle of theLands and Revenues ceded,in perpetuity,by His Highness
Rao Pzcndit Prudhan Bahadoor, to the Honorable East India Company, by
virtue of thVI1 Article of the annexeTreaty,amownting to thirfy-fou(34)
Lacs ofRupees
Lands and Revenues to be made over immediate1y:-
The districts of Relapoor, Athgaon, and Kulian, and al1the territories
possessed by His Highness Rao Pundit Prudhan Rahadoor situated to
the North of those districts, as far as Guzerat, and lying between the
Ghauts of the Syadree mountains and the sea.
Al1 the rights and territories possessed by His Highness Rao Pundit
Prudhan Rahadoor in Guzerat, with the exception of Ahmedabad,
Orpar, and the annual payment due by the Gaekwar; the tribute of
Katteewar, eçtimated, after deducting the expense of collections, at
four lacs of Rupees.
The territories of Dharwar and Koosigul. The above territories are
to be made over immediately. The necessary espenses of the manage-
ment of the said districts are then to be ascertained, and deducted from
the gross revenue. The remaining revenue is to form part of the thirty-
four lacs stipulated for in the seventh Article, and the territory required
to complete that amount isto be ceded in the Carnatic, in such situations
as may be most convenient to the Honorable East Tndia Company's
Government, with a view to the preservation of a distinct boundary line.
Whatever col~ections may have been made by the Officers of His
Highness Pundit Prudham Bahadoor from the districts, to be made
over immediately, or from those to be hereafter assigned, in the Carnatic,
subsequent to the commencement of the present 1-Iindooyear (answering
to the5th ofJune, 1817))areto be repaid tothe Officersof the Honorable
East India Company, agreeahly to the ninth Article of the Treaty.
For the piirpose ofascertaining the amount of the revenues of the
territories now made over, it isgreed that the regular accounts for the
last twenty years shall be produced from the records of His Highness
Rao Pundit Prudhan Bahadoor's Government, within the period of
five days.
PESHWA'S Seal. PESKWA'Ç Signature.
(Signed) HASTINGS.
N. B. EDMONSTONE.
Governor General'ç A. SETON.
Small Seal. G. DOWDEÇWELL. ANKEXES TO COUNTER-MEMORIAL (E NO. 12)
273
Ratified by the Governor General iii Council, this fifth day of July,
one thousand eight hundrecl and seve~iteen.
(Signed) J. ADAM,
Acting Chief Secretary to
Government.
Paper presentedby fkeResident ad Poonczto thePeshzeia'sMivisfers, onthe
6th of July 1813, and accepted by His Highness on the joZlowing day,-
(allztdedtoin Article XVI 01theforegoing Treaty)
1. His Highnesç the Peshwa will take no notice of past injuritis, and
will advance no pecuniary daims without the consent of the British
Government.
II.The Jageerdars to retain possession of their Surinjamee lands as
long as they serve His Hightiess the Peshwa with fidelity.
III.Al1 Iands and revenues which have been usurped, i.e. enjoyed
withont Sunuds, by the Jageerdars to serve His Highness the Peshwa.
IV. The Jageerdars to serve His Highness the Peshwa, according to
their Tynat Zabtas, and to attend with their contingents when sum-
moned by His Highness. The Peshwa will not give any promise to the
Jageerdars that shall Iimit liis ancient right to summon them when he
pleased, and retain them as long as hc thinks fit ; But he promises the
British Government toemploy them when the affairs of his Government
require it, and to dismiss them according to the ancient usage, by the
advice of the British Government, when their services are not required.
His Highness also engages to treat the Jageerdars with the consideration
to which they are entitled by former practice.
V. The British Government charges itself with the fulfilment of the
conditions contained in the IV. Article above written. Ifthe Jageerdars
shall not accept them, the English Government will enforce them by
fair means, or by force, if necessary, and if they should finally reject
them, the British Government will unite with the Peshwa in resuming
their lands for His Highness. Should the Jageerdars give their consent
to these engagements at present, but hereafter refuse to comply with
them, the British Government will joiii the Peshwa in punishing them.
VI. The Peshwa's Government will not depart from any of the
engagements into whicli the British Government may enter, in con-
formity to the preceding Articles, nor is any other authority to interfere
with the British Governmen t in the present negociation.
PESHWA'S PESHWA'S Signature.
Governor General's
Small Seal.274 ANNEXES TO COUNTER-MEMORIAL (E NO. 12)
Katified by the Governor General in Council this 5th day of July 1817-
(Signed) J. ADAM.
Acting Chief Secretary to
Governmen t .
Sunud #romHis HighnessBajee Rao RughoonathPeshwa, to His Highness
Anurtd Kao Gaekwar, for the su~render, in fierfietual sovereignty,fothe
British Governmei~toJthe Peskwa's share of the Ahmedabad District
The farm of Ahmedabad, in the Province of Guzerat, to the North of
the Mahee River, having been granted to you in perpetuity from the
present year, a settlement was made for the payrnent of the Rusud, etc,
in the usual currency, independently of ICatteewar.
The real anlount of the Rusud ....... Rs. 3,75,000
Private persona1 payment ......... ,, 25,000
Court charges ................ 50,000
4.50.000
By instalments as follow, viz.:
On the 1st of Shravun Shood ....... I,~O,OOO
Ditto 1st of Vyshakh Shood ......... 1,50,000
........
4,50,000
Which surn of four and half lacs of Rupees, was settled for the farm,
without any deduction on account of famine, or disturbance, and
exclusive of al1 charges for interest, exchange, or other allowances,
connected with the Rusud, to be paid by instalment to the authorities.
of the Presence, a receipt being taken for the same, upon which terms.
the farm was granted to you on the 29th of Rujub of the present year,
Sun Suman Ushur Myatyne Wu Uluf (or 15th June, 1817). and a Sunud
issued accordingly; But as the sum of four lacs and a half of Rupees,
annually accruing to Government from the said district, together with
the Government authority over it, have been ceded to the British.
Government on account of military expenses, you will continue to pay
the sum of four lacs and a half of Rupees annually, and obtaining a
receipt for the same, act in concurrence with the British Government.
Dated the7th of ZilkadbSoor Sun Suman Gshur IlJyntyne Wu UEuf(or
19th Sefitember1817A.D.)
true translation)
(Signed) R. T. GOODWIN,
Secretary and Translator. ANKEXES TO COUNTER-MEMORIAL (E NO. 12) 275
Proclamation issued on tht: 11thof 1;ebruaî.y1818, by the Hon'ble M.
Elplainstone, Sole Commissioner for the settlement of the Territories
co~zqvered/rom the Peshwa
From the tjme when Biijee Rao ascended the Musnud, his country
was a prey to faction, and there was no efficient Government to protect
the people. At length Bajee Rao was expelled from his dominions, and
took refuge iii Bassein, where he was dependent on the bounty of
Khunde Kao Rastia. At this time he entered into alliance with the
British Government, and was immediately restored to the full possession
of this authority. The tranquillity 'that has been enjoyed since that
period is kno1r.n to al1rariks of men. At Bajee Rao's restoration, the
country was laid waste by war and famine, the people were reduced
to misery, and the Government derived scarcely any revenue from its
lands: Since then, in spite of the farrning system, and the exactions of
Bajee Rao's Officers, the country h3s completeIy recovered, through
the protection afforded it by the British Government, and Ba;jee Rao
has accumulated those treasures which he is now employing against his
benefactors: The British Government not onIy protected the Peshwa's
own possessions, but maintained his rights abroad. It could not, without
injury to the rights of others, restore his authority over the Muratha
Chiefs, which had expired long before its alliance with him, but it paid
the greatest attention to satisfy hjs admissible demands, and had
succeeded, in spite of many difficulties,inadjusting some, and putting
others in a train of settlernent. Among these were Bajee Rao's claims
on the Gaekurar; The British Government prevailed on that Prince to
send his Prime Minister tci Poona, for the express purpose of settling
those demands, and they were on the eve of adjustment, with great
profit to the Peshwa, when Gungadhur Shastree, the Gaekwar's Vukeel,
was murdered by Trimbukjee Denglay, the Peshwa's Minister, while
in actual attendance on his Court, and during the solemn pilgrimage
of Pundhurpoor. Strong suspicions rested on Bajee Rao, who was
accused by the voice of the whole couiltry; but the British Govei-nment,
unwilling to credit such charges against a Prince and an Ally, contented
itself with demanding the punishment of Trimbukjee. This was refused,
until the British Govermient had rnarched an army to support its
demand; yet it made no claim on the Peshwa for its expenses, and
inflicted no punishment for his protection of a murderer. It simply
required the surrender of the criminal, and on Bajee Rao's compliance,
it restored him to the undiminished enjoyment of ail the benefits of
the alliance. Notwithstanding this generosity, Bajee Rao immediately
commenced on a new systiim of intrigues, and used every exestion to
turn al1 the powers of India against the British Government. At length
he gave the signal of disturbances, by fomenting an insurrectiori in his
own dominions, and prepared to support the Insurgents by open force.
The British Government had then nci remedy but to am in tiirn. Its
troops entered Bajee Rao's territories at a11points, and surrounded him
TreatiesAgreements, and Engagcmentç, between the Honorable East India
Company and the Native Princes, Chiefs, andStates, in Western India; Red
Sea; The l'ersian Gulf; etc. aIso betweAer BritannicMajesty's Government,
and Persia, Portugal,and Turkey-by R. HUGHESTHOMAS-Bombay, r851-
page 539. 276 ANSEXES TO COUNTER-~IEMORIAL (E NO. 12)
in his capital, before any of those with whom he had intrigued, had
time to stir.Rajee Rao's professions of gratitude for past farours, and
of entire dependence on its moderation, once more resolved Government
to continue him on his Throne, after irnposing such terrns on him as
might secure it from his future perfidy. The principal of these tems
was a commutation of the Contingent, which the Peshwa was bound
to furnish, for money, equal to the pay of a similar body of troops,
and on their being agreed to, the British Government restored Bajee
Rao to its friendship, and proceeded to settle the Pendharees, who had
so long been the pest of the peaceable inhabitants of India, and of none
more than the Peshwa's own subjects. Rajce Rao affected to enter with
zeal into an enterprise so worthy of agreat Government, and assembled
a large army, on yretence of cordially assisting in the contest ; but in
the rnidst of al1 his professions, he spared neither pains nor money to
engage the powers of Hindoostan to combine against the British, and
no sooner had the British troops marched towards the haunts of the
Pendharees than he seized the opportunity to commence a war, without
a declaration, alid without even an alleged ground of cornplaint. He
attacked and burned the house of the British Resident, contrary to the
Iaws of nations and the practice of India, plundered and seized on
peaceable travellers, and put two British Officers to an ignominious
death. Bajee Rao himself found the last transaction tao barbarous to
avow, but as the perpetrators are still unpunished, and retain their
coinmand in his army, the guilt remains with him. After the commen-
cement of the war, Bajee Rao threw off the mask, regarding the murder
of Gungadhur Shastree, and avowed his participation in the crime, by
uniting his cause with that of the murderer. Ry these acts of perfidy
and violence, Rajee Rao has compelled the British Government to drive
him from his Musnud, and to conquer his dominions; for this purpose
a force is gone in pursuit of Rajee Rao, which will allow hirn no rest;
another is employed in taking his forts; a third has arrived by the way
of Admednuggur; and a geater force than either isnow entering by
Khandesh, under the personal command of His Excellency Sir Thoinas
Hislop; a force under General hlunro is reducing the Carnatic; and a
force frorn Bombay is taking the forts in the Konkan, and occupying
that country, so that, in a short timeno trace of Bajee Rao will remain.
The Raja of Satara, who 1s nolv a prisoner in Bajee Rao's hands, will
be released, and placed at the head of an independent sovereignty, of
such an extent as may maintain the Raja and his family in comfort
and.dignity; with this view the fort ofSatara has been taken, the Raja's
fiag has been set up in it, and his former Ministers have been called
into employment. Whatever country is assigned to the Raja will be
administered by him, and he willbe bound to establish a system of
justice and order. The rest of the country will be held by the Honorable
Company. The Revenue willbe collected for the Government, but al1
property, real or personal, will be secured. Al1 Wutuns, and Inams
(hereditarylands), Wurshashuns (annual stipends), and al1religious and
charitable establishments, will be protected, and al1 religious sects will
be toIerated,and tlieir customsmaintained, as faras is justand reason-
able. The farrning system is abolished,-Officers shall be forthwith
appointed to collect a regular and moderate Revenue, on the part of
the British Government, to administer justice, and, to encourage the
cultivators of the soil, they will be authorized to allow remissions in ANNEXES TO COUXTER-MEMORIAL (E NO. 12) 277
consideration of the circumstances of the times. All persons are pro-
hibited paying revenue toBajee Rao, or hisadherents, or assisting them
in any shape; no reduction will be made from the revenue on account
of such payrnents. UTutundars and otlier holders of lands, are required
to quit his standard, and return to their villages, within two ~nonths
from this time. The Zumindars will report the names of those who
remain, and al1who fail to appear, in that time, shall forfeit their lands
and shaI1be pursued without remissio~i,until they are entirely c~ushed.
A11persons, whether belonging to the enemy, or otherwise, wfio may
attempt to lay waste the country, or to plunder the roads, will be put
to death, whenever they are found.
(SigiterlM. ELPHINSTONE.
Dated the 11th February 1818.
Profiositionsmade ioRajeeHao 09the 1stJune 1818, and acceptedbyhim
1. That he shall resign, for himself and successors, al1 right, title,
and claim over the Government of Poona, or to any sovereign power
whatever.
II, That Bajee Rao shall immediately corne with his family and a
small number of his adhererits and attendants to the Camp of Brigadier
General Malcolm, where he shall be received with honor and respect,
and escorted safe to the city of Benares, or any other sacred place in
Hindoostan, that the Govei-nor General may, at his request, fixfor his
residence.
III. On account of the peace of the Deccan and the advanced state
ofthe season, Bajee Rao miist proceed to Hindoostan without one day's
delay; but Brigadier General Malcolrn engages, that any part of his
family thatmay be leftbehind, shall be sent tohim, as earlyas possible,
and every facjlitygiveiito render their journey speedy and convenient.
IV. That Bajee Rao shall, on his voluntarily agreeing to this arrange-
ment, receive a liberd pension from the Company's Government for
the support of himself and family ;the amount of this pension will be
fixed by the Governor General, but Brigadier General Malcolm takes
upon himself to engage that it shall not be Iess than eight lacs of Rupees
per annum.
V. IfBajee Rao, by a complete and ready fulfilment of this Agreement,
shows that he reposes entire confidence in the British Government, his
requests, in favor of principalJageerdars, and old adherents, who have
been ruined by their attachrnent to hini, wiil meet with liberal attention.
His representations, also, in favor of Bramins of venerable character,
and of religious establishments foiinded or supported by his family, will
be treated with regard.
VI. The above propositions must not only be accepted by Bajee Rao,
but he must personally coine into Brigadier General Malcolm's Camp
l Treaties, Agreements, and Engagements, between the Honorable EastIndia
c'ompany and the Native Princes, Chiefs, and States, in Western ITheaRed
Sea; The Persian Gulf; etc. also between Her BritannAlajesty's Government.
and Persia, Portugal, and Turkey-by R. HUGHES THOMAS-Bombay. 1851 ,-
page 542. AXNEXES TO COUNTER-RIEM0RI:IL (E NO. 12)
278
within twenty-four hours of this period, or else hostilities will bre-
commenced, and no further negociations will be entereinto with him.
(Triie copy)
(Sipzed) A. MACDONALII,
Assistant. ANNEXES TO COUNTER-MEMORIAL (E NO. 13)
z79
Annex E. No. 13
REVENUE DEE'ARTMENT
Vol. No. zoo of 1845
Frorn
The Governor General of Goa,
To
The Hon :Sir George Arthur,
Governoi of Bombay,
Dated 25th September 1844
Most Ill: andExc. Sir,
Not long ago, Your Escellency was pleased, as an act of unquestion-
able justice, to declare, that the produce of the villages in the Purgunnah
Nagar Hevellee, exported for consumption to Damaun, should be free
of duty.
Under the same principle, it is hciped, tkat articles from Damaun,
which are intended for the market at the said villages, should likewise
be exempted from the paynient of duties.
Such is unhappily the state ofpovei-ty amongst the inhabitantç, that
even this grant would appear too small an indulgence, considering that
in consequence of the heavy imposts they have been reduced to the
necessity ofabstaining frorri the use of salt in cooking their food, which
measure proves highly prejildicial to their health, bto which they are
compelled to resort with the view to be enabled to meet the dt:mands
thus made on them, as ithey were the inhabitants of a British territory.
Perhaps the same Revenue system, which is observed with the produce
of the said villages may be made to appIy to articles exported from
Damaun, the passes being signed by the Governor.
1 reckon upon a favourable reply to my proposa1 which is based on
justice and remains tobe decided by your Excellency.
1 have the honor to be your Excellency's,
Most Attentive Servant,
Nova Goa, 25th Sept., 1844. (Signed) Jose FERREIRA P.ESTANA
True Translation,
Portuguese Translator to Government.R.D. Vol. 200 of 1845
From
The Governor General of Goa,
To
The Hon: Sir George Arthur.
Governor of Bombay.
Dated Nova Goa, 23 Noveniber 1844.
Most Illustrious and Excellent Sir,
On the 25th of September Iast, 1 had the honour to address Your
Excellency, submitting a request, for the abolition of the transit duties
on articles from Daman (Portuguese territory) which might be taken
for consumption tothe Pargana Nagar Haveli (aIso Portuguese territory)
as have been conceded in the opposite case.
On that occasion, 1 laid before Your Excellency theState of poverty
in which these people lived, and the privations they endured to the
prejudice of their health; and now being again informed, that the dis-
proportion of eight Rupees on account of duty which is levied at the
British Mettas (Chowkies) upon one Rupee's worth of salt, as well a5
privations ofhthose unfortunate people.xe1hasten to solicit Your Excel-he
lency's decision upon the above mentioned representation to which 1
rekcon upon a successful reply, because it isfounded on justice.
1have the honour to be with the highest consideration.
Your Excellency's
Attentive servant
True Translation.
(Signed) Illegible.
Portuguese translator to the Government of India.
R.D. Vol. 200 of1845.
No. 1476 of 1844.
Territorial Department Revenue
To
E. H. Townsend, Esquire,
Secretary to Gorernment
Bombay.
Sir,
1have the Iionor to state my opinionin reference to the accompanying
letters from His Excellency the Governor of Goa, thatit would be highly
unpolitic to comply with the request therein made as the effect thereof
would be at once to raise the port of Daman into importance to the
detriment of our own interests, for if goods are allowed to be exported
from Daman across Our frontier intoNaggur Havellee ~nder~the same ANNEXES TO COUNTER-MIS31ORIAL {E NO. 13) 281
terms as is now done in regcird to import therein from the latter place,
the Portuguese have only to lower their tariff and rate of duty to inflict
serious injury oii Our customs Revenue and as regards the excise on salt,
I would observe asno higher duty is expected from Portuguese than from
our own subjects, it seems unreasonable to expect that the duty should
be reduced in favour of the former, however if the Portuguese Govern-
ment will agree to give up the management of their present salt workç
at Daman to us, and to agrei: that no more pans than those at present in
operation shall be opened, and also allow us to participate to the extent
of z/3rd in the customs at Daman in 1:hiscase 1 fancy the proposition
might be reasonably acquiesced in, but not otherwise.
1 have the honor to be,
On CircuitVingorla, Sir,
Off: of Collector
of Cont. Ensts. & Yours most obedt: Servant.
Ex : (Signed) Illegible.
31st December, 1844. Collector of Cont. Custs. SrEx.
R.D. Vol.zoo oj 1845
Territorial Department Revenue.
Referred for the opinion and report of the Revenue Commissioner
Northern Division.
By order etc.,
(Signed) Illegible
Secy. tO Governmen t .
Bombay Castle,
17th January, 1845.
Ter: Dept. Revenue
To
E. H. Townsend, Esq.,
Secretary to Government
Bombay.
Sir,
1 Iiave the .honor to retuni the papers on the subject of the customs
on the Daman frontier, received for my report under your endorsement
dated the 17th instant :
2nd. Ican readily believe it to he both inconvenient and unpalatable
to the Government of Daman that thme should be any restriction on
the freedonl of its traffic witha detached dependency such as Nagar
Aveli, and if it coulbe reiaxed with0u.t material risk to Our revenue it
might be politic and courteous to concede the point, if however this could
not be done, it does not apyiear to me that the Portuguese Government
has any reasonable ground to expect that its subjects in that district ANNEXES TO COUNTER-MEMORIAL (E NO. 13)
282
should be placed on a more favourable footing than Our own, with whom
they are at present in every respect on an equality :-
~rd. As regards the practicability of making such a concession without
material risk to the revenue 1 entertain great doubts; it could only be
done by carrying out custom stationsround this detached district, which
would 1 apprehend (although 1 have no very correct knowledge of the
localities) add considerably to their cost and impair their efficiency.
It may also be observed that although thiswould open a free communi-
cation between this dependencp and the seat of its Government, it
would place its traffic with our districts under restriction from which
it is at present free -Besideswhich it may admit of some doubt whether
clause VI1 of Act I of 1838,which authorizes the levy of customs duties
on goods passing by land into or out of Foreign European settlements
situated on the line of Coast would extend to portions of those settlements
cut off from the line of coast.
1 have the honor to be Sir,
Your Most Obedient Servant,
(Sigrîr.d) Illegible.
Revenue Commissioner.
Rev. Commr. Camp
Nagotna 31st Jany 1845.
R.D. Vol. 200 ot 1845.
NO.1069 of1845.
T. D. Revenue.
To
The Most Illustrious and Excellent
Senhor Jose Ferreira Pestana,
Governor General of the Portuguese
States in India-Goa.
Most Illustrious and Excellent Sir,
We have had the honour to receive your Excellency's Ietters, dated
respectively 25th September and 23rd November last , requesting that
the transit duties levied on articles exported from Daman across
the British Frontier into the Nagar Aveli, rnay be abolished, and to
express our regretof the inability of this Government to accede to Your
Excellency's request, consistently with the security of the Customs
Revenue of the British Government. Id. IIlegible.
{Sigrszd) Illegible.
1st March 1845.R.D. Vol. 200 of 1845.
No. 23.
From
The Governor General of Goa.
To
The Hon: Sir Geo: Arthur,
Governor of Bombay,
No~raGoa, 12th February, 1845.
Most Il1 :and Exct : Sir,
Your Excly : having admi.tted the propriety of exempting from the
payment ofduties at the British Metas, such of the produceof the villages
belonging to the Pargana Nazar Aveli as were intended for consurrtption
at Daman, 1 had the honour inmy des~iatch of the zjth September and
23rd November last, to observe, that uncler the same principle an exempt-
ion of duties might be allowed in the British territory, with regard to
articlestaken from Daman into those villages, which are very poor.
Your Excly: has not yet been pleased to giveme a reply on the subject,
but 1 trust you will do it, as soon as possible, and at the same tirne,
extend the above measure as respects the articles from Dabel, Coli, Coxi,
and the remainder of the Country to the east of Daman, (both big and
small) which are brought into small Daman through the British village
called Cunta; as well as such articles asgo from those villages into
Daman, I mean articles which are transported to Daman through Cunta
with the view to avoid the marshy grounds near the salt pans.
Relying on Your Excellency's rectitude and favour, I expect a
favourable decision.
1 have the horior to be with the higii<:stconsideration.
Your Excellency's
Attentive Servant.
(Signed )llegible.
True Transl,Ct'ion.
(Signzd) II1c:gible.
P.1'.to Government.
No. 1283 of 1845.
Revenue.
LO
The Most Illustrious and Excellent
Senhor Jose Ferreira Pestana,
Governor General of the Portuguese States
in India, Goa.
Most Illustrious and Excellent Sir,
We have had the honour to receive Your Excellency's letter, dated
12th ultimo, soliciting an answer to Your letter of the 25th September
and 23rd November iast, in which you request that the transit duties
levied on articles exported from Daman across the District frontier284 ANKEXES TO COUNTEB-IIEMORIAL (E NO. 14)
into the Nagar Aveli may be abolished and in reply we beg to refer Your
Excellency to the reply to those Ietters contained in our despatch dated
the 1st March which we trust Your Excellency will have received belore
this reaches you.
(Signed) Illegible.
B.C.
19th March, 1845.
Annex E.No. 14
National Archives, New Delhz
1878
Government of India. Foreign Department, Secret No. 78,
pp. 63-64, 90-98.
No. 14,dated 16th September 1870
From
Government of India,
To
His Grace the Duke of Argyll, KT., Secretary of State for India.
The Government of Bombay have again represented to us the very
serious inconvenience which is caused by the continuance of the privilege
enjoyed by Portuguese commerce at their Surat factory, viz., exemption
from any higher customs duty than zi percent.
2. This matter formed the subject of repeated correspondence, as is
noted in the margin l, between the Government of Bombay, or prede-
cessors, and the Hon'ble Court of Directors. In their latest letter on the
subject, dated 4th August 1852, the Hon'ble Court, while defining the
meaning and extent of the privileges in question, supposing them to be
continued, announced their intention of communicating at a future
date their instructions on this the main point, viz., whether the continu-
ance of the privileges was to be conceded or not. The above intention
was, however, never fulfilled; and the matter now presses for prompt
decision, for the letter of the Bombay Government, No. 2511, dated
26th May last, which gives a full historical account of the different
1 From Government of India, to Government of Bombay, dated 6th April 1821;
Consultation 6th April 18211106.
From Government of Bombay, to Court of Directors, No. 5, dated 25th May 1821.
From Court of Directors, to Government of India, dated 19th Angust 1829.
From Government of Bombay, to Government of India, No. 721, dated 29th Fe-
bruary1844; Consultation,20th july 1844. Nos. 5 t8.
From Government of India, to Court of Directors, IO,dated 20th July,1844.
From Government of Bombay, to Court of Directors, dated 31st March 1845.
From Government of India, to Court of Directors, dated 12th April 1845.
From Government of Bombay, to Court of Directors, dated6thApril 1846.
From Government ofIndia, to Court of Directors, dated 12th June, 1847.
From Courtof Directors, to Government of India, dated zjrd Februar1848.
From Governrnent of India, to Court of Directors, dated 4th August 1852. ANNEXES TO COUNTER-3IEhlORIAL (E NO. 14) a5
phases through which the correspontience regarding these privileges
has passed, contains aIso lively illustrations of the loss to which the
revenue of British India is exposed fro~ntheir continuance. Nor pcsssibly
wilI the mischief stop with the enjoyment of exceptional advantages
by Portuguese commerce at Surat. It isimpossible to say what dormant
privileges the Portuguese themselves may not claim in other Indian
ports in virtue of similar documents, bearing in mind the well-known
fact that in early days they obtained many such concessions frcim the
Chiefs on the Malabar Coast. It is, moreover, at any time open to traders
of other nations, to proffer demands for participation in these ex-
ceptional privileges. In Our commercial treaties, not only with European
Powers, but with Asiatic States, such as Persia and Miiscat, trade is,
almost without exception, put upon the footing of that of the most
,favored nation; and if any concessions whatever are giveri to the Portu-
guese, the same migilt be claimed as of 1-ightby every nationin the world
with which we have a commercial treaty containing the most favored-
nation clause.
3. The exemption in question is based on a firman of the Mogul
Emperor Furokhseer issued in the year 1714; and during the timt! when
the correspondence already referred to was going on with the Home
Government, their continua.nce, for the time being, was recognized on
several occasions by Acts of the Indiaii Executive and Legislature.
4. The question thus resolves itselE into the consideration [iftwo
points, viz.,our obligation to continue these privileges in virtue of the
Emperor's firman, and our obligations to do so in virtue of Our own
admissions.
First, then, as to tlie firtnan. This tlocument was not a treaty, but a
mere charter of privileges conferred by the Government of the day,
entitling the Portuguese to be treated like the Mohamedan subjects of
the Mogul-to be, that is, relieved from the exceptionally high duties
levied from traders of other religions generally. As sucb, it would not be
extinguished rnerely by the cessation of the power of the hlogul. Privi-
leges of this kind belongingto the class known as semitutes jzcvigerztium
do not, we admit, cease wit:h the extirictionof the power that granted
'them. But there are other grounds on which the document must be
considered as having no permanent binding force. It appears clear from
the correspondence on record that the firman was never inteniied to
confer greater privileges thaii those enjoyedby the Mogul'sown subjects,
and that when extra duties were irnposed as a war tax, they were levied
from the European factories which held finnans, as well as from the
subjects of the Empire. It is also quite certain that firmans were not
treated by the Emperors as of perpetiial obligation, but were liable to
be cancelled or altered at pleasure. 'i'hey were so understood by the
English;and itis clear thatthe Dutch so understood them, because they
took good care to secure firom each successive Emperor a renewal of
their privileges, based on similar firmans. It will hardly be pretended
then that privileges, the griint of which was revocable at the pleasure
of the Mogul Emperors, miist be cont inued against the pleasure of the
British Power, their successors in the government of the country. Still
less, we conceive, can it be pretendecl that documents, the object of
which was to put certain foreign traders on the same footing as the moçt
favored subjects of the Government of thlst day, can be of force to put 286 ANNEXES TO COUNTER-MEMORIA (L NO. 14)
them, andnot only them, but, as a consequence, foreign traders generaily,
. on a footingsuperior tothat occupied by the subjects of the Government
of thi say.
Secondly as doour admissionT s.ey are contained in Section6 of Act
I of 1838, and Section 19 of Act 1 of 1852; but there is no allusion to
these priviIeges in the Consolidated Customs ActVI of 1863, by which
the previous Acts were repealed. The privileges are now continued by
an Executive Order of the LocalGovernment passed under the empower-
ing Section19 of the Consolidated Act. It is, to our mind, clear that these
enactrnents admitted nothing more than the fact of the existence of the
firman privileges, without in any way affecting their revocable character,
which had, indeed, been asserted in the most unmistakable terms in
Our predecessor's letter dated 6th April 1821 to the Government of
Bombay.
5. In a few words, then, the rnatter stands thus: The hlogul Emperor
granted to the Portuguese at Surat in1714 a revocable privilege, which
survived and retained its revocable character when the British Govern-
ment took the place of the Mogul. The Acts of the Indian Legislative
Council in substance ordered the officers of Government to respect it.
Those Acts have since been repealed, but the Executive Government
have been empowered to exempt, and have exempted, the Portuguese
from the payment of duties higher than those specified inthe firman.
If that orderbe rescinded, the duty will be leviable under the general
law of the Empire. The question then anses whether the revocation of
the firman or the rescission of the exemption would be a breach of the
treaty obligations of England to Portugal, we think not. The treaty now
in force is that of1842,which provides that each power is to put the
other on the footing of the most favored nation,-aprovision which in
no way imposes upon us the obligation to maintain, in favor of the
Portuguese, any exceptional revocable privilege granted by the former
Sovereigns of India.
6. Unless, therefore, Your Grace should take a view of the matter
different to our own, we purpose to inform the Government of Goa that
the exemption in question will cease on the 1st April1872, and we there-
fore solicit the favor of an early reply to this despatch.
Dated India Office, 18th December 1872.
Frorn
Under-Secretary of State forIndia,
To
Under-Secretary of State for Foreign Affairs.
With reference to former correspondence terminatingwith your letters
of the 20th August and 5th Novernber 1872, relative to the commercial
advantages of the Portuguese traders at Surat in British India, 1am
directed by the Duke of Argyll to forward to you ten printed copies of
the memorandum asked for in your letter of the 20th August last,
containing a narration of the past proceedings in the matter, and a
statement of its present position. ANNEXES TO COUNTER-MEMORIAL (E NO. 14)
5537
From this document it will be obvious that the privilege, which the
British Indian Government is under no obligation to continue, hasbeen
most unduly stretched, and that the traffic now carried oii under it is
of a totally different charader from thiit originally contemplated, and is,
in fact, a gross abuse othe privilege.
1 am to add that, as a1re;rdy intimated imy letter of the 2nd March
1871, His Grace, while anxious to avoid any step which could give
reasonable ground of timbrage to a friendly power, entirely concurs in
opinion with the Governments of India and Bombay that it is absolutely
necessary in the interests of the revenues of British India finally to
terminate a commercial p-reference which has been stretched so far
beyond its legitimate limit or intention.
P.S. 1 am to point out that the second part of the memorandum,
commencing at page zr, arid marked confidential, has been so printed
that it can, if needful, be detached, should itbe considered by Earl
Granville advisable to çubniit the fornier part of the statements for the
consideration of the Gowrnment of Lisbon.
Portt~gztesC:ommerciaE PrivilegesutSurat
I.The privileges claimed on behalf of the Portuguese factory at
Surat originated in a firman granted try the Emperor of Delhi in 1714.
At that time merchants of other nations were also trading in Surat under
special privileges conceded by the same potentate; and it seerns neces-
sary, in order to place thsubject in aclear light, briefto describe the
conditions under which the several European factories were estatilished,
the nature of their privileges,nd the state of Surat at the perioii when
those privileges were granted.
z. Surat in the seventeerith centurÿ was a dependency of the Mogul
Empire, governed by a resident (Mussulman) Nawab. It was the chief
emporium and port of Western India, and was the centre of anextensive
trade with the Persian and Arabian Gulfs. It was the port whe~icethe
Mahomedan devotees of the whole Mogul Empire set sail or1 their
pilgrimages to Medina and .Mecca.Its rulers were very jealous of stran-
gers, and no foreigner could reside or trade there without the permission
of the Emperor himself. It had tu70 Custom-houses, the "Phoorza",
at which sea customs were levied, and the "Khooshkee", for the collec-
tion of land customs. The rates of duty levied at both Khooshkee and
Phoorza from the natural-born subject.~ of the Empire were as under-
Mahomedans paid 29 per cent. advalorem.
Hindoos paid 5 per cent.ad valorem.
These duties, as well as those sub;equently levied from foreigners
under firman privileges, wrlre payable on goods of every description,
whether imported or exporred by sea or by land; and the paynient of
land customs on goods imported at the Khooshkee did not exempt the288 ANNEXES TO COUNTER-3IEMORIA LE NO. 14)
same goods from sea customs on exportation through the Phoorza,
neither did payrnent on import at the Phoorza clear goods through the
Khooshkee. The Armenians and Jews had a factory of their own from
an early date, and paid customs duties under a firman at the rate of
39 per cent.
3. In 1612 the representatives of an association of English merchants,
which afterwards grew into the East India Company, succeeded in
obtaining permission to settle at Surat, and opened a factory under a
firman granted by the Emperor of Delhi, which authorized them to
trade on payment of customs duties at the rate of 3# per cent. ad valorem
on both exports and imports. They were followed by merchants of the
Dutch Ratavian Company in 1617, who also obtained the Emperor's
permission to trade on similar terms. In 1649 the Dutch succeeded in
gaining further concessions from the Emperor, one of which was the
reduction of customs duties on their trade to 2 per. cent; and in 1667,
through the good offices of the Nam-ab, who then ruled in Surat, the
British factory was admitted to similar privileges under a firman granted
by Aurungzebe. There had always been great cornpetition and rivalry
between the two factories, and for a time the Dutch were both feared
and favoured more than the English merchants; but the acquisition by
the British of the Island of Bombay, the arriva1 of troops and ships of
war from England, the gallant and successful defence of the English
factory when Shiwajee sacked Surat in 1664, and the treaty concluded
between the Company and Shiwajee ten years later, contributed to turn
the scale in favor of British ascendancy; and the commencement of the
eighteenth century found the English factory in a more flourishing
condition and possessed of greater privileges than the Dutch. TheDutch
at that period continued to pay export and import duties of 2 per cent
ad valorem, but the English had commuted their customs liabilities for
a fixed tribute of Rrrpees 10,000 a year, and had eçtablished a Custom-
house of their own, wliere they levied duties at 4 per cent. from al1
persons trading at the port under their protection.
4. Such wrts the position of affairs when the Portuguese opened
their factory under the firman of 1714 .o far as is known, the original
firman has not been preserved, and it is certain that no copy l of it is
extant either on the records of Government or of the Portuguese factory.
But the clairns made under it have always been limited to the admission
of goods to export and import on payrnent of an ad valorent duty of
29 per cent.
1There is on the records of the Secretarcopy of a translatioof a mandate
issued by the Nawab of Surat to the officers of the Surat Custom-houin 1714,
in connexion with the firman grantedto the Portuguese by the Emperor of Delhi
in thatyear. In it the raof customs dutiesIeviable from the Portuguese traders
is stated at29 per cent.. and it is added that the ris the same as that levied
from Dutch merchants. But it is clear. from the translaof the firman granted
to the EngIish factory (vide page 783 of Thomas' "Treaties, Agreements, and
Engagements"), that the rate levied from the Dutchwas only 2 per cent. The
document appears to have been furnished to the Chief of Surat by theNawab
in 1796, and from the difference above noticed, and from discrepancibetween
the prearnble and body of the document. which are apparent on perusal,1 am
inclined to doubt its authenticitTranslations of it and of the firman granted
to the English in1667 are appended to this memorandum. ANNEXES TO COUNTEK-MISMORIAL (E NO. 14) 289
5. The firman of 1711 did not admit thePortuguese tradersto the privi-
legesof thethen mostfavore~ination, as the concessions under which both
English and Dutch factories were trading were superior to those gianted
to the Portuguese. The most that can be made out of the facts in favor
of the Portuguese is that they were allowed to trade on egual terms with
the Mahomedans, the most favored community of the Emyieror's
natural-born subjects.
6. The French established a factory in 1668 under a fir~nan, but their
factors traded so recklessly that they soon became involved, and were
obliged to abscond from Surat, leaving a iiumber of debts unpaid. Some
years afterwards they attem.pted to obtain permission to re-open their
factory, but without succes:;. Many years later, when the British had
obtained a share in the administration of the port, French trade revived
for a time, but both French and Dutch factories were abandoned tiuring
the European wars at the c:losc of the eighteenth century; and when
merchants of those nations returned to Surat, after the general peace of
1815, the Bombay Governnlent declined to re-admit them to firman
privileges, and they soon Iefi: the port.
7. On the 7th February 1;r47,under the orders of the Mogul Govern-
ment, the rates of customs duties levied at Surat were increased al1
round bythe imposition of an additional ekotra, or tax of one per cent.
It is plain, therefore, that the Moguls didnod themsolvesconsider the
privilegesconcededunder thea.firmans lo beiatmutable.
8. Again, on the 14th Marc1117j9, after the acquisition by the ELritish
of the Castle of Surat and tht: charge of the Mogul fleet,a second ekotra
was imposed on the whole irade of the port, as a sort of war tax, for the
purpose of indernnifying the Company for the cost of the expedition.
This impost continued in force until 1795, a fact which shows that in the
earliest days of their powei- at Surat, the Company, like the Mogul
Government, did not scru$le..on occasion,to increase the rates of firman
drcties.
9. In 1795 the rates of duty leviable at the Company's Customhouse
in Surat were generally redaced to z# per cent., in assimilation 1:othe
practice at Bombay; but after a long ctirrespondence with the Supreme
Government it was decided that the former, or modified rates of duties,
should be re-imposed, and that at the same time an additional diity of
one per cent. should be leviecl for "Marine charges".
IO. On the 13th May, 18~30,Surat, with its territories and depen-
dencies, was ceded by the Nawab to the East India Company, and in
the following month a Regu.lation (No. IX of 1800) was passed by the
Governor of Bombay in Council, definirig and dctermining the customs
duties leviable at that port. Allusion is made to the firman privileges of
the Portuguese, etc., in Clau.;e2, Section VII, in the following terins:-
"With respect to the ships, vessels, and commerce of those European
nations possessing firman from the Great Mogul, the same rules, pre-
1 The British at the same time acquiredashare of the general customs duties
of the port. The arrangementwas as follows-
"The British took the whole ofthe war ekotra,and one-third of the c~istoms
leviedat the Phoorza and Khooshkee; theMahrattas .took the chout-, which had
been ceded to them after Shiwajee had overrun Guzerath. andthe llloguls retained
the balance." 290 ANNEXES TO COUNTER-31EMORIAL (E NO. 14)
cautions, and observances are to be followed in the department of the
Phoorza ashave hitherto obtained, aswell in respect to their European
as Indian commerce, adhering to the established practice in regard to
each branch; the Coliector being attentive to report to Government, and
to propose the correction of any abuse that experience rnay show to
exist therein."
But it is very noticeable that Section XII, which fixes the tariff,
while expressly exempting goods landed or shipped under firman privi-
leges from the double l valuation impoçed on foreign trade generally,
makes them liable to the one per cent. extra duty for Marine charges
noticed at the conclusion of the last paragraph. This factis important,
as showing that the Company, in its earIiest enactment for regulating
customs duties at Surat, though recognizing the "rules, precautions, and
observances," and the "established practicè" in regard to firman privi-
legeç, thought it no infringement ofthose privileges to increase the rates
of duty payable by persons trading under them.
II. Another instance of enhancernent of the firman duties occurred
in 1806. Up to the previous year trade with the Persian and Arabian
Gulfs had been specially exempted from the double valuation imposed
on foreign trade under the provisions of Clauçe 3, SectioXII, Regulation
IX of 1800; but this exemption was withdrawn by order of the Bombay
Government in 1806,even in the case of goods imported into the Portu-
guese factory at Surat. Payment on the increased wluation was at first
resisted by the Director of the Portuguese factory, but his objections
were ovemled, and the orders of the Government were carried into
effect.
12. The first allusion made by the Court of Directors to the firman
privileges is contained in a letter addressed by the Hon'ble Court to
the Chief of Surat in the year 1779, and is to the following effect:-
"The firmans, general as they are, are not to be construed as universal,
but are ta be understood with this limitation, that they do not operate
to the prejudice of any subsisting right or usage, much less of such
rights as could not be abolished without a considerable diminution of
the public revenues."
The language used is not very clear; but the Court evidently intended
to convey to the Chief instructions to pennit the continuance of the
privileges only so far as they did not prejudice any rights which had
accrued to the Company.
13. In 1786 the Government of Bombay decided that only such goods
as were bona fide the property of the Portuguese should be admitted to
the firman privileges.
14. In 1799 the privileges were further limited to goods both owned
by Portuguese and carried in Portuguese vessels.
15. In 1818 a Committee assembled at Surat under orders of the
Bombay Government to make a general inquiry regarding firman
privileges. They submitted a long report in the month of February of
the following year, the general tenor of which was to show that the
1 The duties imposed by the regulation were ad valovem, and goods imported
or exportedon foreign bottomswere appraised at rate60 per cent. iexcessof
their invoiced value. ANNEXES TO COUNTEX-31EllORIrlL (E 90. 14) 29=
continuance of the privileges would operate to the Company's prejiidice,
that they were enjoyed by favor and not by nght, and that the British
Company was clearly entitled to abrogate them at its pleasureIn for-
warding this report to the Supreme Governrnent, the Government of
Bombay remarked that, "under the <:ircumstances under whicli the
firman privileges were granted, the Portuguese could not justly expect
more than to be allowed to tnide on the same termsas British merchants,
which would exempt them from the payment of double duties at Surat,
to which they are subjected in every i~ther port in India"; and they
recommended the withdrawal of all other privileges. A letter was received
in reply from the Supreme Covernment asking for further information
on several points, which was supplied; but no further notice seerns to
have been taken of the matter by the Supreme Governrnent.
16. In a letter from the Government of Bombay, datedthe 18th Octo-
ber 1820, the Chief of Suratn7asdirected to Ievy town duties on the trade
of the Portuguese factory in addition to the 24 per cent. customs duty
imposed by their firman.
17. In the samc ycara correspondence took place between the Govern-
ment of Bombay, the Chief of Surat, and the Director of the Portuguese
factory regarding the imposition ofand custorns duties on goods exported
in land by the Portuguese factory, in addition to the sea customs paid
on their importation. The Bombay Gorernment decided that the levy
of such duties was in accorda.nce with the practice of the Mogul Govern-
ment, and directed that they should be imposed accordingly.
18. The tariff imposed under Regulat.ion XIV of 1800 made a differ-
ence of 14per cent. only in favor of the Portuguese trade,anitappears,
from a letter written byMT. Agar, Chief of Surat in1820,that the trade
of the factory had by that time fallen off to a considerable extent. The
additional imposts noticed iri the two ~ireceding paragraphs reduced it
still furtheras their effect w:is to raise the firman duties to the Ievel of
those imposed on unprivileged trade. And this is probably the reason
why the records of the Secretariat for inany years subsequent to 1820
are silent on the subject of firman privileges.
19. ReguIation IX of 1800 (except Clause 2, Section VII, quoted in
paragraph IO) was repealed by Act I of 1838, the first ConsoIidated
Customs Act passed by the Si~premeGovernment. Its general effect was
to reduce the tariff; and for the first time certain classes of goods were
adrnitted to free import aiid export, and high tariff duties were
imposed on a few articles of import. Fiiman priviIeges were alluded to
in the following terms (SectionVI):-
"Provided alwnys that the :;hipsof any Europeannation having firman
privileges in the port of Surat shall not be subject to further duties of
import or export than may be prescribed by their firmans, respectively,
anything in the schedules or in this Act notwithstanding."
And yet the Portuguese trade (the only firman trade remaiiiing)
enjoyed the full benefit of the reductions of tariff in cases in which tariff
rates were lower than firman rates,and the total exemption from customs
on free goods. It seems curious that tliis provision should have been
made by the Supreme Government without communicating its reason
to the Government of Bombay, although the non-existence of the
firman, or copy thereof, had been officially declared, and the abolition
of al1firman privileges had been recornrnend~d. 292 ANNEXES TO COUNTER-hlEhlOKIAL (E NO. 14)
20. In1841 the Director of the Portuguese factory endeavoured to
pass through the Surat Custom-house, on payrnent of firman duties,
a quantity of tobacco which had been shipped from Cambay to Damaun,
and thence in Portuguese boats and in the name of a Portuguese owner
ta Surat, the firman duties being lower than the tariff rates on tobacco.
The case was reported to the Government of Bombay, who prohibited
the entry of the tobacco, except on payrnent of tariff duty, and took the
opportunity of declaring that the firman privileges were applicable
only to goods im orted in Portuguese ships, and not to the Portuguese
coasting trade.?Ph effecO/ thir order*as the uirtud su.s$ensionO/the
firman privileges, asthe ocean trade of the factory had ceased many
years before.
21. In 1840the trade of the factory had dwindled down to the import
of goods of the gross value of Rupees 817, the duty on which at tariff
rates amounted only to Rupees 29, and at firman rates to Rupees 20.
The ruling noticed in the preceding paragraph was relaxed in 1845,
when the coasting trade was again admitted to firman privileges; but
the factory showed but little vitality,as the average value of its trade
for the next seven yearsl amounted only to Rupees 641 per annum,
chargeable at tariff rates in the amount of Rupees 32, and at firman
rates in the amount of Rupees 20.
22. In rS5z the second Consolidated Customs Act (Act 1 of 1852)
was passed, repealing Act 1 of 1838, and still further reducing the tariff
and increasing the list of free goods. The continuance of firman privileges
was provided (Section XIX) in the same terms as those used in Act I
of 1838. During the next ten yearathe Portuguese factory trade improved
considerably, its total value averaging Rupees,5,123 per annum, liable
to tariff duties of Rupees415,and to firman duties of Rupees 128. This
improvement was due to the increased importations of salted fish and
cocoanuts from Damaun and Goa. These commodities could be imported
under firman privileges at a good profit, as salt is not subjected to any
excise in the Portuguese territoriein India, and the duty on cocoanuts
was considerably increased by the Tariff Acts passed to amend the rates
prescribed in Act 1 of 1852 .hese Acts also considerably increased the
duties Ieviable on most imports.
23. The Customs Act now in force, repealing Act 1of1852,was passed
in 1863 and contains provision (Section XIX) forthe continuance of the
firman privileges of the Portuguese factory at the discretioO/theLocal
Government.
A reference was made on the subject by the Comrnissionerof Customs,
and Government in their Resolution No. 1682 ,irected the Commissioner
to continue the privileges, at the same time remarking (paragraph 4):-
"It appears, however, hardly necessary to move the Secretary of State
in the mattcr of withdrawing firman privileges, as al1 exports are free;
and asthe import duties (the present high rates of which appear to be
only ternporary) were, until recently, only 3 per centon most articles,
or half per cent.only above the firman rates."
24. In the same year the Director of the Portuguese factoryattempted
to introduce Damaun salt into Surat under firman privileges,but his ANNEXES TO COUNTER-MEMORIAL (E NO. 14)
293
request was peremptorily refused by Mr. Elliot, Deputy Commissioner of
Customs, N.D. On kis repeating the attempt in 1868, the subject was
brought to the notice of Government, who, in their ResolutionNo. 1226,
dated 29th March ofthat yeai:, confirmed Mr. Elliot's action in the matter.
25. In 1870 the Director attempted to pasç piece-goods which had
been exported out of bond in Bombay to Darnaun, and carried thence
to Surat in a Portuguese pattimar under firman privileges. But this was
opposed by the Customs authorities, and disallowed by Government.
26. Between 1862-63and I867-68 thetrade of the factory again sliowed
a slight improvement, its value in that period averaging Rupees 6,450
per annum, liable to duties at tariff rates, amounting to Rupees 636,
and at firman rates to Rupees 161.But in 1868-69 a neu- trade sprung
up, with which Government has not as yet directlyinterfered, and which
has had a very serious effect on the customs revenues.
27. In that year a quantity of Portuguese wines and spirits from Goa
were presented for import under firman privileges, and were ~iassed
without any reference to Govcrnment. 'Chedifference between tariff and
firman rates on these imports amountrld to Rupees 2,307. In 1669-70,
on a similar consi nment being offered for clearance by the Director of
the Portuguese &ctory, Mr. Dalzell, Deputy Cornmissioner, N.D.,
refused to admit it to finnafi privileges, and levied fuIl tariff rates upon
it. The matter was then referred to Government, who, in their order
No. 1633,dated 4th Apnl 1870, resolved as fo1lows:-
"As the privilege claimed by the Director of the Portuguese factory
at Surat has onmore than ont: occasion been recognized bythe legislature,
and has been coriceded by Gclvernment iip to the present time, it must be
admitted in this instance,an? the difference between the full duty levied
and 23 per cent. valuation must be refunded."
28. On the 26th May following the Gnvernrnent of Bombay addressed
the Government of India on the subject of the Portuguese firman pnvi-
leges in their Chief Secretary's lettNo. 2511, which contains a rt:sumé:
of the history of the priviIe,ges and of the action of Government with
reference to them, and conclildes withastrong recornmendation that the
privileges be forthwith discontinued.
29. On the 23rd June 1870 Govemment resolved, in their Resolution
No. 2998, to admit to firman privileges :;ornegin which had been brought
from Damaun, and which the Deputy Commissioner, N.D., had refused
to pass without instructions: The circurnstances under which these were
imported via Damaun was ntit fully reported to Government at the time,
and from their admission dates the nionstrous abuse of the pnvileges
which has continiied up to the present date. In 1870-71 the value of
wines and spirits imported under firman privileges into Surat reached
the sum of Rupees $4,017, and the los$ of customs on the importations
amounted to Rupees 29,432. In 1871-72 the value of importations
rose to Rupees 6,54,196, and the loss of revenue to Rupees 2,83,719;
and the value of the importations of the last three months has reached
Rupees 7,22,586,and the loss of revenue Rupees 2,96362.
30. The total loss of revenue during the two years between June 1870
and June 1872, resulting from the admission of this trade to firman
pnvileges amounts to Rupees 6,og,413. 31. Al1 these wines and spirits, except a small quantity of Tinto.
Branco and other Portugal wines, and about 20,000 cases of brandy,
which were landed at Damaun from a French ship which discharged
there in the cold weather, were first imported into bond into Bombay
by merchants trading at the port under British protection, and then
exported out of bond to Damaun duty free, as Damaun is a foreign port.
On amval at Damaun they were transhipped into Portugueçe pattimars,
and cleared through the Custom-house for export to the Portuguese
factory as the property of the agents, Portuguese subjects, who had
consigned them from Bombay. After being landed at Surat, they were
admitted to firman pnviIeges, on the application of the Director, as the
certified property of Portuguese subjects freighted on Portuguese
bottoms, and the greater portion was carted straight to the railway
station as soon as cleared through the Customhouse, and sent back to
Bombay by train, thus evading the payment of full tariff dues by a
false representation and subterfuge. It was not a friendly act on the part
of the Portuguese officials atDamaun to grant certificates of Portuguese
ownership with so little care and inquiry, and the act of the Director in
claiming to pass these goods under the provision of his firman, constitutes
a flagrant abuse of the privileges which have been continued to hiç
factorythrough the favor of the British Govemment. The case is precisely
similar to one reported in the diary of the Chief of Surat for the year
1720. Itis there shown that both the Dutch and English factories very
nearly lost their firmans in that year in consequence of having attempted
to pass goods, the property of Hindoo merchants of Surat (which were
liable to a duty of 5 per cent.) for exports as their own property. The
.Nawab was only appeased by the receipt of handsome presents, and
solemn undertakings on the part of the Directors of both factories to
abstain from al1such interference with the Government rights in future.
32. On the 30th April last, in their Resolution No. 2086, Govemment
ordered that the differencebetween the tariff and firman duties should
be levied on al1wines and spirits entered under the firman privileges on
export beyond the walls of Surat. But this has not stopped the import-
ations under firman privileges of the nature described in the last para-
graph. Between the 1st of May and the setting in of the monsoon, 107,907
gallons were imported via Damaun, and thisstock is now held in Surat
in the expectation either that the orders of the 30th April last will be
withdrawn, or that some interval, during which the trade will be again
opened, irillintervene between the issue of orders for the abolition
of the privileges and the date of their abrogation.
33. It is not quite clear who were the founders of the Portuguese
factory, or how they obtained their firman. The records in the Secretariat
relating to the period when the Portuguese first settled in Surat are very
rneagre, and merely alluded to the factory as being in existence. But
nothing on the Government records or in histones leads tothe supposition
that the Portuguese Government had any interest in the trade of the
factory, or that its accredited envoys were concerned in obtaining the
firman under which it traded. It is well known that bands of Portuguese
adventurers were constantly wandering about the western coast of India
in the seventeenth century, and that they founded trading depots at
Cambay, Ahmedabad, Carwar,'Cochin, and other places, which were the
property of private individuals, though to a certain extent under the ANNEXES TO COUNTER-IIE~IORIAL (E NO. 14)
295
protection of the PortugueseAag; and it seems most probable that their
factory at Surat, like ours aiid the Dutch, was founded by such adventu-
rers, and that its privileges were as jr:alously monopolised by the few
who owned the venture as were those of the Dutch and English factories
by their respective factors. The diaries of the English factory of1719
and 1720 contain accounts of several .instances in which the European
factories made comrnon cause agairist European strangers who attempted
to open a trade in Surat,and the resistance and obstruction which the
Company offered to yrivate traders,-"interlopers", as they were called
in those days,-is a matter of history.A further reason for concluding
that the Portuguese Govei-nment and nation had no direct concern
in the firman or factory is to be found in the fact that neither the Home
nor Indian Govemment of tlie Portuguese have everinterfered to support
the daims of the Director of the factory, though he himself has been
loud and persistent in his complaints, on the many occasions on which
the practice and privileges of the factcirhave been restricted and cur-
tailed, and especially during the period from 1841 to 1845 when the
privileges were entirelysusjended. Nut a letter is on record from any
Portuguese officer, other than the Director of the factory, on the subject
of firnian privileges.
34. The direct trade of the factory has long since ceaçed, and the
Director now is merely an agent, who passes (so-called)Portuguesti goods
through Our Custom-house. He is appointed by the Governor ofDamaun,
and, until quite recently, was in the habit of remunerating himself by
the Ievy of a duty on al1goods admitted to firman privileges of 2+ per
cent, in addition to the duties payable at Our Custom-house. Itis not
clear when this practice commenced, but it was in existence in 1820,
and was noticed and strongly objected to by the Government of Bombay
in a letter which they addressed to the Supreme Govemment in that
year. In June 1872 a new Director was appointed on a fixed salary, and
with instructioils to hold the extra duties levied by him at the factory
io the credilof thePortug~eseGovenzm.ent .his is the first instance on
record in which the Portuguese Governrnent have attempted to derive
a rel-enue from the trade of the port of'Surat, and is, it is submitted, an
act in direct violation of thc sovereign rights of Her Majesty the Queen.
35. The above is al1 the informaticin whicli it has been possible to
collect, which seems calculated to assist in the determination of the
question of the continuance or revocation of firman privileges. It has
been shown that the effect cifthe firman at the time when it wasgranted
was simply to place the nicrchants of the Portuguese factory on an
eguality,as regards trade it:heport of Surat, with the most favored the
native communities, and i~ rn injerior position to that Ihen held the
Dutch and English Companies; that the rate of firman duties was raised
by the Mogul Government along with the rates of duty payable by
unprivileged trade in 1747; that the rates of duty were still further
increased to the same extent as ordinary customs duties, under the joint
administration of the Nawab and tht: Company; that the Company's
earliest legislation rnaintained such increased rate of firman duties; that
trade admitted to firman privileges har been from time to time subjected
to additional imposts, and that the conditions of admission of trade to
firman privileges have been subject to frequent alteration, curtailment,
and restriction, bothby the Company and the Crown; that the privileges296 ANNEXES TO COUNTEK-MESIORIAL (E NO. 15)
have from the first been treated as uncertain and of doubtful validity,
and have been continued as a matter of favor and not as a matter of right ;
that the privileges have never been claimed on behalf of the Portuguese
nation, and that the Portuguese Government had never interfered con-
cerning them; and lastly, thatthe recent importationwines and spirits
into Surat, under cover of firman privileges, constitute a flagrant abuse
of those privileges.
36. There can be no doubt that the continuance of these privileges is
quite incompatible with the continuance of Our present system of
customs administration, however little inconvenience may have arisen
from their exercise ai a time when they were limited to tlie legitimate
trade of a private factory, and al1impoand exports were subject toan
unifom ad valorern tariff but little in excess of firman rates. The Portu-
guese factory, as it was when it received its firman, has long ceased to
exist. It has lately degenerainto an ag-encyfor the colourable evasion
of Our customs laws, and has forfeited al1claims to consideration at the
hands of Government. Nor does it appear that such Portuguese subjects
as have used it for legitimate trade, according to theractice of the
last few years, will have just reason to complain of the abolition of its
privilegesas they have lately been admitted to trade inall Our ports
on a perfect equality with British subjects; al1exports and many imports
have been made free, and transit duties have been done away with
throughout Our dominions,-concessions which are infinitely more
valuable to the Portuguese people than the pettyexemptions of which
the few of their number who trade to Surat wiIl be deprived.
37. A çtatement giving details of the Portuguese firman trade since
1840is appended to this memorandum. It willbe noticed that the
ordinary trade of the factory has .quite ceased since the importations
of wines and spirits commenced.
Annex E. No. 15
Part r
THE SEA CUSTOMSACT, 1878
PROHIBITION AND RESTRICTION OF IMPORTATIO AND EXPORTATION
18. No goods specified in the following clauses shall be brought,
whether by land or sea, into British 1ndia:-
(a) any -book printedin infringement ofany law in force in British
India on the subject of copyright, when the proprietorof such copy-
right, or his agent, has given to the Chief Customç Authority a notice
in writing that such copyright subsists, and a statement of the date on
which itwill expire:
(6) counterfeit coinor coin which purports to be Queen's coin of
India, or to be coin made under the Native Coinage Ac1876 ,ut which
is not of the established standard in weight and fineness: (c)any obscene book, pamphlet, paper, drawing, painting, represen-
tation, figure or article:
(d) articles bearinany names, brands, marks being or purporting to
be, names, brands or marks of manufactures resident in the United
Kingdom or British India, a.nd not made by such manufactures.
19.The Governor General in Couricil may from time ta time by
notification in the Gazetteof India, prohibit or restrict the bringing or
taking by sea or by land goods of any specified description into or out
of British India orany specified part of British India.
Part :!
FINANCE & REVENUE DEPARTMENT
Notification No. 171,dated 12th January 1892
In exercise of the powers conferred by section rg of the Sea Cixstoms
Act, 1878,(VI11 of 1878),the Governor General in Council is pleased to
prohibit,with effect from the 15th January 1892, the bringing or taking
by sea or by land into any part of the Presidency of Bombay of country
liquor produced or manufactured in any part ofthe Indian Possessions
of His Majesty the King of Portugal and Algarves.
iLnnex E. No. 16
GazetteO]India, 1908P ,t. 1,p. 32
Notification
No. rz7-4, dated the 9th January1908
In exercise of the powers conferred liysection 19of the Sea Ciistoms
Act, 1878(VI11 of 1878)~the Governor General in Council ispleased to
prohibit the taking by sea orby land of Mhowra flowers from any part
of British India to any part othe Indian Possessions of His Majesty the
King of Portugal and Algarves. ANNEXES TO COUNTER-hfEllORIAL (E NO. 17)
Annex E. No. 17
Government of India. Finance Department. Separated Revenue. A.
Proceedings August 1910.Nos. 472-479
Dated the zrst December 1909.
From
His Excellency the Governor General of Portuguese India,
To
His ExceUency Sir G. S. Clarke, G.C.M.C., G.C.I.E., Governor
of the Presidency of Bombay.
After having resumed charge of my office on my last return from
Portugal, the Chief Secretary to Government of this Province laid before
me letter No. 4347, dated the z~st June last, from the Secretary to
Government of the Bombay Presidency.
2.After carefully going through the.,contents+of the lettin question,
1 had to get together al1 the documents extant relating to the subject,
as well as obtain al1the various information from competent authorities
in view to form a correct idea on the points under discussion. It has
thus been easy for me to arrive at conclusions sufficiently accurate to
deal with the question with due deliberation and exactness.
3. 1 have consequently verified that under the special situation in
which the Portuguese territories of Daman and Kagar Avely are found
to stand in relation tothe adjoiningBritish territoriea series of circum-
stances occur giving rise to motives for cornplaints on both sides more
or less justifiable, and whichthe local authorities often bring to the
notice of their respective Governments.
4. 1 have also verified that the etfects produced by these self same
circumstances couId be easily removed, had there been a rnutual agree-
ment between both the Governments, namely, that of Bombay and of
Portuguese India, in view to safeguard the legitimate public interests
of both the parties concerned.
5. Granting this, it appears to me that such an agreement should be
entered into without delay for mutual convenience and that it should,
if possible,be made in the manner 1 have already referred to, that is,
comprising not only the question of the system of distillation and sale
of country liquor, but also in a special manner the question of transit
of productions across the respective frontiers between the two Portu-
guese territories of Daman and Nagar-Avely and between the parts of
the latter intersected by the British territories,-a question intimately
connected with the former and which cannot beleft out of consideration
in entering into this agreement.
6. In this manner a naodusvivendi would simultaneously be established
satisfactory to the national interests which each of the two Governments
are legitimately bound to protect in the territories of their jurisdiction.
7. Convinced that Your Excellency wjll be pleased to consider that
this my view of the question is correct, and that you also wbeldisposedto deal with the subject, as it appears to me convenient for both the
Govemments, I have the honour to inform Your Excellency with much
pleasure that 1 have been authorised by the Government of His Most
Faithful majesty, through the Secretary of State, Colonial and Marine
Department, to negotiate with Your Excellency's Government regarding
the agreement above referred to, and which I expect will correspond as
far as possible with the proposals contained in the letter from the Secre-
tary to Government of the Presidency of Bombay above mentioned.
8. Should Your Excellen.cy be p1ea:jedto consent in dealing witl-the
question according to the views above expressed by me, it would be
convenient, in my opinion, on account of the complexity of matters,
that two officia1deiegates may be appointed, one on behalf of Your
Excellency's Government and the other on that of mine, entrusted to
study, discuss and elabora.te a project of the agreement, meeting for
this purpose eitlier in the British or the Portuguese territory as Yoiir
Excellency may choose.
9. It does not appear to me difficiilt to arrive in this manner, in a
short time, at a satisfactory settlement of this business, since tht: object
in view is to secure harmony in the interests relative to the pubIic
administration of the territories undei the dominion of the two nations,
such as ours, traditionally allied, and the relations or cordial friendship
of which have been drawn closer and closer, and are always progressing
for the general welfare of both.
IO. The agreement refei-red to, which the I'ortuguese Government
wish to enter into and is also wisherl for by the British Government,
as the Secretary to the Government of Bombay has properly said in his
letter, becomes the more easy as it is certain that the object of the two
Governments is to safegua.rd their legitimate interests and to respect
IoyaIly al1 the interests of the neighbouring territory. Such will be the
instructions which 1 shall give to tht: delegate of this Government, in
the event of Your Excellensy agreeing with the proposa1 herein made.
II. In conclusion 1 have to state tliat, according to the instructions
which I have received, whatever may be the conditions of the agreement
arrived at between hoth thc Colonial Governments, I will have to suhmit
it for the sanction of the Home Goverliment in order to put it into force.
12. 1 await, therefore, Your Excellency's satisfactory answer, and
for which I thank you ccirdially in anticipation. God preserve Your
Excellency.
No. 3162, dated the 8th April 1910.
From
The Honourable Mr. G. CARMICHAEL I.,C.S., Acting Chie€Secre-
tary to the Governnient of Bombay,
To
The Secretary to the Governm~entof India, Finance Department.
With reference to the correspondeiice ending with Mr. Jukes' letter
No. 4557-Exc., dated 11th.September 1909, regarding the prohibition
of the export of mhowra flowers to Portuguese India, 1 am directed to
forward a copy of the reply, dated z~st December 1909 from EIis Excel-30° .4NXEXES TO COUNTEK-MEMORIAL (E NO. 18)
lency the Governor General of Portuguese India to this Government's
letter No.4347,dated zrst June 1909,a copy of which was forwarded to
the Government of India with letter No.6531, dated 6th July 1909. It
will beseen that the reply of the Portuguese Government is vague and
makes no advance towards the solution of the question at issue. That
Government apparentIy wishes to bring under review the whole question
of customs arrangements on the frontier, and especially the treatment
of goods in transit from one part of the Portuguese possessions to another.
The Governor in Council is strongly of opinion that this ought not to be
allowed. The sole question for consideration is upon what terms as to
the manufacture and sale of country liquor in Daman and Nagar-Avely,
the British Government will withdraw their Notification No. 127-4,
dated 29th January 1908, prohibiting the export of mhowra flowers from
British districtsinto the Portuguese territory;and the Governor in
Council is of opinion that the negotiations with the Portuguese Govern-
ment should lieconfined to that point only.
2. The Governor in Council further considers that it wouldbe pre-
mature to appoint an officer.to discuss the matter with the Portuguese
authorities until the scope of the negotiations is settled. When this
stage is reached, as the British delegate will have authority to conclude
an agreement, it should be insisted upon that similar authority be dele-
gated to the Governor General of Portuguese India or his representative.
It will be mere waste of time if the arrangements are to be referred to
the Lisbon Government for ratification.
Annex E. No. 18
RecordOfice, Bombay
1912
Revenue Department. No. 1948. Frag. A.
GOVERNMENT OF INDIA
Department of Commerce and Industry
(Customs)
No. 117-47, dated 6th January 1912
In exercise of the powers conferred by secti19 of the Sea Customs
Act. 1878 (VI11 of 1878) t,e Governor-General in Council is pleased to
prohibit the taking of dates from any part of British India into that
portion of the Indian possessions of the Government of Portugal which
is known as the Pargana of Nagar Avely.
R. E. ENTHOVEN,
Officiating Secretary to the Government ofIndia. ANNEXES TO COUNTER-BIEMORIAZ, (E NOS. 19-20} 301
Annex E. No. 19
RacordOpce, Bombay
1912
Revenue Department. No. 194s.Frag. B.
Department of Commerce and 1ndusti.y
(Excise)
No. 7668-212, dated 12th October 1912
NOTIFICATION
In exercise of the powers conferredby section19 of the Sea Customs
,4ct 1878 (VIII of 1878) t,e Governor General in Council is pleased to
prohibit the taking of jagrifrom any part of British India into that
portionof the Indian possessions of tlie Government of Portugal which
is known as the Pargana of Nagar Avely.
R. E. ENTHOVEN,
Secretary to the Government of India.
Annex E. :No.zo
Kt:cordOfice, Bonzbay
1913
Revenue Llepartment, No. 1948. Frag. A.
Department of Cornmi:rce and Industry
(Excise)
NOTIFICA'TION
No. 9540-212, dated 4th January 1gr3
In exercise of the powers conferredhy section 19 of the Sea Customs
Act, 1878 (VIII of 1878),t1ieGovernor General in Council is pleased to
prohibit the taking of molasses whercver manufactured from ariy part
of British India into that portion of the Indian possessions oC'thern-
ment of Portugal which is Iznown asthe Par,ana of Xagar Avely.
R. E. ENTHOVEN,
Secretary to the Government of India. ANNEXES TO COUNTER-NEMORIAL (E NO. 21)
302
Annex E. No. ZI
Revenue alzd Statistics Department,No. 372.2
Dated 2nd December 1912.
From
Senhor EUSEBIO DA FONSECA D,irector General of the Portuguese
Colonial Office,
To
F. C. DRAKE, Esq., Secretary, Revenue and Statistics Depart-
ment, India Office.
1 have the honour to transmit to you the enclosed Bases of the Con-
vention to be realised between the Government of the Portuguese
RepubIic and the Govemment of His Britannic Majesty, tending to
establish an equal regime of the manufacture and the sale of spirits in
the Portuguese territories of North India, aiid in the adjoining British
territories, withoutthe exclusion of those forming the Native State of
Dharampur.
2.In harmony with the verbal proposais which 1 made to you at our
last conversation on the 25th ultimo, 1 have formulated the Articles or
bases that 1 believe will regulate the transit of spirit and salt between
the Portuguese Dominions of North India, as well as those principles
that 1 think necessary to establish on the importation of salt from
Damao into the maritime ports of British India with payment of
duties and the prescription of formalities that will entirely safeguard
the interests of the British Government.
3. I wish to make clear that in Article 8th 1 have fixed at 500,000
Imperia1 gallons the maximum quantity of spirit for free transition for
the group of villages of Dadra, because the population being 1,153
inhabitants by the census of 1910, and establishing in ArticIe 5th one
Impcrial gallon per day for each inhabitant, it results that the ordinary
consumption in 365 days would be of 410,845 gallons; but it being
necessary to remember the cases foreseen in the said Article 5th, native
festivals, marriages, etc., it appears to me not being an excessiveallo-
wance 89,155 gallons, as a maximum lirnit for the extraordinary con-
sumption of al1 the population of the small district (enclave), and so
much so that the resulting extraordinary capitation is of 76 gallons
per year.
4. According to the last census the population of Nagar Avely was
of 29,020 inhabitants. Considering that each inhabitant needs the
minimum of 15 lbs. of salt, it does not seem exaggerated to allow the
margin of 65,000 Ibs.for the extraordinary consumption; henceforth the
reason which made me propose (Article 8th) 500,000 lbs. as a maximum
limit for salt from Damao in free transit for Nagar Avely across the
British territory.
An equal criterion 1 applied to the cipher of20,000 lbs. asbeing the
maximum limit for Damao salt to be introduced, free ofduty ai British
ports, in the district (enclave) of Dadra.
j. As 1 do not yet possess the necessary elements of information, 1
leave undetermined the quantity of mhowra flower referred to in
Article fth, as well as the minimum sale prices of spirits when the
hypotheses foreseen in Article4th will occur. ANNEXES TO COUKTER-MEMORIAL (E KO, 21)
3O3
Bmes O/Convention
Article 1st.-The Portuguese Govelnment will suppress, within the
period of three rnonths counting from thc date of the exchange of the
ratificationsofthe present Convention, the outstilIs now in existt:nce in
their territories of North Iridia-Damao, Xagar Avely and the group of
villages of Dadra, Dernny and Tigra-establishing in their place only
two central (official) distilleries, one at Damao, at the greatest conve-
nient distance from the frontier, and another at Nagar Avely, in the
chief town of the north dist:rictVillaPaço d'Arcos or Silvassa.
However, for the facility of providii~for al1 the territory, the Portu-
guese Government may establish an ctfficialdepot in each of the chief
towns of the two remaining districts of Nagar Avely and a third one in
the village of Daclra.
Article 2nd.-The grades of the spirits manufactured in the central
distilleries referreto in the previous Article will be always equal to
those manufactured in the territories of British India and in those of
the Native State of Dharampur; it tieing agreed, until alteration by
common consent of the tv~o Governinents, that the strength of the
spirits will be of5"U.P. and of 60' U.P.
Article 3rd.-The Portuguese Govemmen t will collect on the spirits
manufactured in the distilleries referred to in Article ~st, still-head
duties equal to thosc col1ectt:in the territory of British India and in the
Native State of Dharampur on spirits of the same grade; it being agreed,
Save the modification made by common consent of the two Governrnents,
that the taxes will be two rupees on each Imperia1 gallon of spirits of
25" U.P. and one rupee on equal measure of spirits of 60" U.P.
Article 4th.-It is understood tliat if the Portuguese Government
desire to adjudicate to an individual or society the exclusive right of the
manufacture and sale of spirits in their Northern Indian territorie., in all
of them or separately, they will be able to do so, having in this caseand
in the territories where the regime of exclusiveness will be in force, to
be fixed the minimum price of the sale of mhowra spirits in the public
houses of the monopolist, vihich will be equal, for spirits of the same
grade, to the sale price at the border teiiritories both of British India and
the Native State of Dharainpur; and whilst not modified by mutual
consent of the two Goverriments, the price will be for an Imperia1 -
gallon of spirit of25" U.P., Rs., and for equal measure of spirit of Boo
U.P., Rs.
Article 5th.-It is prohibited, both in Portuguese and British terri-
tories of India as well asin those of the Native State of Dharampur, to
sel1 in the public hoiises more than one Imperia1 gallon or six quart
bottles of native spirit at one time in eacday and to any person, escept
on festival occasions, marriages, etc., when the purchaser will present a
permit from the local fiscal.authority, tvho will only issue it after enquir-
ing into the alleged necessity.
Article 6th.-There will 13eprohibited in Nagar Avely the estnblish-
ment of public houses rvithin half a. mile from the British frontier.
Simultaneously an identical prohibition will -bc adopted in the British
territory within half a mile from the Portuguese frontier. ANNEXES TO COUNTER-1lER.IORIAL (E NO. 21)
3O4
Article 7th.-The British Government bind themselves to allow to
get out of their tcrritories, by land or water and free of any duties and
taxes. the mhowra flower required for the manufacture of spirits for the
use of the population of the Northern Indian Portuguese territories; it
being consequently agreed and settled that in the said Portuguese
territories the importation from British territories of mhowra flower
shall he allowed up to the maximum limit of tons in each year.
Article 8th.-The free transit is perrnitted without payment of duty
at the customs posts of British India, of spirits manufactured in the
central distilleries of Damao and Nagar Avely for the group of Portu-
guese villages-Dadra, Demny and Tigra, up to the maximum quantity
of (500,ooo) five hundred thousand Imperia1 gallons per year.
Article 9th.-The free transit is permitted, without payment of duty
at the custorns posts of BritisliIndia, of salt from Darnao for consurnp-
tion and domestic use of the population of the territories of Nagar
Avely and of the group of villages of Dadra; Demny and Tigra, up to
the maximum quantity per year of 500,000 Ibs. for the former and of
~0,000 lbs. for the latter.
Article 10th.-The free transit is permitted between Damao and the
territories of Nagar Avely and those of the villages of Dadra, Dernny
and Tigra, without payment of duty in the customs posts of British
India, of the quantity of Salt of inferior quality, or salt produced spon-
taneously, that they may need bona fide, for the culture of the coconut
tree or for any other culture requiring this quality of manure.
Article 11th.-The free transit is permitted, without payment of any
duty at the Portuguese customs posts, of goods of British origin that
cross the territory of Nagar Avely.
Article 12th.-The Portuguese Government will take the necessary
measures so that from the regime of free transit established by Articles
Sth, 9th and 10th the slightest los will not result to the other High
Contracting Party. And for this the products of Damao in transit for
Nagar AveIy, and vice versa, and also the products in transit from
Nagar Avely and Damao for the villages of Dadra, Demny and Tigra,
will be accompanied by an escort composed of regular troops and passes
sealed and signed in the Administration Office,in which will be stated the
quality and quantity of the goods, the name of the exporter, the route
of transit to be followed, the manner of transport to be iised and the
name of the conductor. These passes must be shown at the British posts
situated along the Portuguese Dominions to which the goods are con-
signed, there being registered, so that any infringer rnay be proceeded
against..
Article 13th.-The importation will be permitted in any of the ports
of British India, and by vessels of less than 300 registered tons, of salt
produced in the Damao beds, paying in.those ports the respective duty.
The Chief of the Damao Customs will make known by the quickest
way to the British authority of the port of destination the departure of
the vessel, the exporter having to produce later a certificate from the
respective British Customs proving that the salt has been there dis-
embarked and cleared. ANNEXES TO COUNTER-MEMORIAL (E NO. 22) 3O5
Article 14th.-The Portuguese Government will select the necessary
staff for the rigorous fiscalisation and execution of the different bases
of the present Convention.
Article 15th.-The preseiit Convention shall corne into forceat the
expiration of three months a.fter the day of the exchange of ratifications,
and shall remain in force for the period of twelve years; and in case
neither of the High Contracting Parties shall have notified to the other
twelve months before the expiration of the said period of twelve years its
intention to put an end to its operation, the Convention shall continue
in force for another period of twelve years, and so on for successive
periods of twelve years, until the expiration of a year counting frcimthe
day on which one or the othsr of the High Contracting Parties shall have
announced its intention to put an end to it.
Article 16th.-The prese:nt Convention shall be submittcd for the
ratification of the High Contracting Powers, andthe ratifications shall be
exchanged ai Lisbon or at London as soon as possible.
London, December znd, 15112. S.Eusebio DA FONSECA.
Annex E. No. zz
Government of India, Department of Commerce and Industry.
Excise General.
JuIy. A. Proceedings. Nos. 7-ro.
The Portuguese Governrnent engage to suppress the distillery at
Dadra within the period of three months from the date of the ratifi-
cation of the Convention, keeping in Damaun only one at BonsoIor, and
in Nagar-Avely one ai Arnli,and another at Candoli.
The Portuguese Governrnent engage that the strength of the spirits
manufactured in the central distilleries referred to in the foregoing
article shall be always equal to that rnanufactured in British Indian
territories being agreed to that, until further alterabyomutual ;iccord
of both Governrnents the strength of the spirits shall be of25' and 60"
a.p. 1, the former being allowed to be raised up to 27" and the latter
up to 66".
3rd
The Portuguese Government engage to collect on the spirits manu-
factured, at the distilleries referred to in bases ~st, the same rates of
distillation as are levied in British India territory othe spirits of the
same strength.
21 AXNEXES TO COUWTER-MEMORIAL (E NO. 22)
306
The Portuguese Government engage to cause the spirits of mhowra
flower to be sold in northern territories at the lowest price that should be
established in British India.
The Portuguese Governmcnt reserve to themselves the right of giving
to any person or Company the exclusive right of manufacturing and
selling spirits in al1thcir nothern territories etogether or separately,
engaging that the sale price of the mhowra spirits in the Jlonoyoliser's
spirits shop shall be the iowest established in the precceding bases.
The Portuguese Government engage not to allow in the native liquor
shops to sel1 daily to one and same person a quantity of native spirits
more than one imperial gallon, except on occasions of festivals, wed-
dings, ctc., under a license obtained by the purchaser from the local
authority who shall grant it after making enquiries about the alIeged
demand.
7th
The Portuguese Govemment engage to cause the removal of the
native liquor shops to a distance of half a mile from thc frontier.
The Portuguese Govcrnment engage to allow free transit of British.
products that pass throiigh their territories,under the same condition
as may bc done by the British Govemment.
The British Government should take the following engagements.
That in the territory of the Raja of Darampur bounded by some
villages of Nagar-Avcly, provisions similar to those mentioned in the
bases and, jrd, 4th, 6th and 7th shall be adopted, the latter two being
also adopted in British territories.
To allow the export to the Portuguesc northern territries, free of
duties, of the quantity of the mhowra flower or another substance
necessary for the manufacture of the native spirits for the consumption
of the respcctive population estimated in the last census.
To allow the native liquor shops of the villages of Uadra, Dernni and
Tigra to be supplied witti spirits for the consumption of the respective
population estimated in the last census from the distilleries of Nagar-
Avely, being the spirits transported under a pass granted with legal
formalities. Without this clause the distillery of Dadra cannot be sup
pressed. ANNEXES TO COUNTER-MI:MORIAI, (E K0. 22)
3O7
To aIlow the salt produced in the sali-works of Damaun to be exported
not only to any place of British India but also to any of the Native
States, in boats of any tonnage, by paying at respective ports the
customs duties which should not be higher than thosc collected at
present.
13th
To aIlow the products of Damaun and Nagar-Avely to be freely
exchanged without the paynlent of duties at the British Customç posts
up to such quantities as rnay be fixed according to the Customs statistics
and enquiry to be held.
The Portuguese Govcrnment will take the necessary measure in order
that by these concessions the other high contracting party may not
suffer any injury and engage-
,1st.-The quantity of salt shall be regulated at 14 pounds per head.
To prevent any ernbezzlement or misdirection it shaH be sent urider a
pass granted with the legal forrnalities accompanied by an escort from
Damaun to Nagar-Avely, alid stored in two depots established cine at
Silvassa and the other at Dadra. From these places it shall be distributed
to the heads of familieç on the procluction of passes as it was done when
the treaty of 26th December 1878 was in force.
znd.-When salt is exported by sr:a the Chief Custom Officer at
Damaun shaII iriform of its shipment, by the shortest route, the autho-
rity of the port of destinatican, and the exported shall be responsible to
produce a certificate from tlic respective Customs stating that the salt
shipped was dischargcd and cleared there.
3rd.-The products of Damaun in transit to Nagar-Avely and vice
versa shall be accompanied I)y a pass signed and sealed at the Adminis-
trator's officestating the quality and qilantity of goods, the name of the
exporter, the route of transit to follou, the nature of conveyance and
the name of the driver. These passes shall. be presented at the ELntish
Custom posts and registered there, in order to institute Iegai proceedings
against any person committi.ng embezzlement ormisdirection. Should it
deem necessary, these products in transit may be also accompanied by
an escort of regular troops in the same way as it is to be done with
the salt.
14th
The British Government e.ngagenot to collect any duty on al1British
~>roductswhich may be imported into Portuguese territories of Darnaun
and Nagar-Avely.
15th
This agreement shaI1 last: for period of ten years and it m:iy be
renewed every tcn ycars by rilutual accord of both parties.
1st-Export from Nagar-Avdy to Damaun-
(a) Illimited qi1antity:--R.lachines, agicultural tools, manure,
furniture and uteni;ils of material, forest products, linen, ANNEXES TO COUNTER-MEMORIAL (E NO. 22) 3O9
4th.-Free transit ispermitted to al1 merchandise between tht: Fort
at Diu and the island of Sirriber and vice versa.
5th.-YearIy import of distiilable substances-
(a) Into Nagar-Avely (Si1vassa)-
Mhowra flower or jaggery or date .... 293,000 Ibs.
(b) Into Damaun-
Mhowra flower or jaggery or date .... 180,000 ..
(G) Into Diu-
Mhowra flower or jaggery or date .... 143.000 ,.
Unique.-The maximum limit established in no way can be exceeded
to, i.e., the total of the quantity imported either of one kindor of two,
or of three together cannot exceed.to the fixed limit.
6th.-Free transit is yeainly permitted to spi& mentioned below,
from Silvassa to Portuguese villages of Dadra, Demni and Tigra.
Spirits of 25"a.p. r ........... 200 imp.
galions.
Spirits of 60" a.pI ........... 800 gallons.
' 1st.-Import from Nagar-Avely into Damaun of unhusked rice-
PopuIation of Damaun according to the last census (~gro), 18,300
Normal consumption per he~id,24 pans yearly-
18,300 :x 24 = 4g!jt20oparas.
The production of Damaun is ............a feed two-
thirds of the population 9,150 aras.
Wayear ..................*..l) or in round figures per 5,000 ..
FrIndian maundsery ................ or, say IOO,OOO 5,000 ..
2nd.-Salt from Damaun to be imported every year into Nagar-Avely-
Total population of the district, 29,020. At
therate of 14 lbs. of saIt per head .... 406,280 lbs.
zo per cent. for breakage ......... 81,256 ,.
Total ofimport . . 487,536 ,,
Rclund figures ...... 500,000 ..
In the deposit at Dadra 14 lbs. multiplied by
1,153 (population of the three villages) are
to be kept .............. 16,142 ..
20 per cent. for breakage .......... 3,228 ..
Total ....... 19,370 ,,JI0 ANNEXES TO COUKTER-RIEMORIAL (E NO:22)
. .
Round figures ..... zo,ooo ...
In the deposit at Silvassa IQ Ibç.rnultiplied
by 27,867 (population of Kagar-Avely, ex-
cluding the villages of Dadra, Demni, and .
Tigra) ................ 390.138 ',,
20 per cent. for breakage ......... 75,028 lbs.
Total ....... 468,166 ,,
. Round figures ...... 480,000 ,,
Total imyort ... j00,000 ..
3rd.-Materia firima to be imported (mhowra fioweror jaggery or date)
(a) District of Nagar-Avely-
One candy of mhowra fiower 7jo lbs. produces
spirits of 60" (average of 4.5 gallons per
every maund) ............. >oo gallons.
It is required every year zg,zoo gailons of
spirits of 60" and this requirement demands
candies of mIiowra flower or jaggery or date 325 ,,
or lbs. ...... 243,750
Plus zo per cent. for breakage and any
darnages ............... 48,7jo lbs.
'. Quantity to be irnported every year .... 292,500 Ibç.
Round figures ..... 293,000 ..
(b) Quantity of spirits requiring free transit from
Silvassa to Dadra, Demni and Tigra-
,. . Popolation' of three villages ........' r ,163
At the rate of 6 bottles pcr head or 1,153
gallons of spirit of 60" .......... 6,918 bottles.
The spirits requiring frce transit are therefore-
of 25' .... 192 gallons equal to 384 of 60".
of 60" .... 769 .. .,, .,, 769
1,153 of 60".
, . .
Remark.-A candy from Surrate has 20 maunds and,each maund 40
seers or lbs. 37.5.
(c)District of Damaun-
Population ....'............ 18,300
At the rate of 6 bottles ber head of spirits of,.$;. .
60" or 18,300 gallons .......... 109,80,.bottles.
.. Candies of mhowra flower or jaggery or date .
20402. ................ 150,000 lb~.
. Plus 20 per cent. for breakage ....... 30,000 ..
Quantity to be irnported yearly ...... 180,000 ,, ANNEXES TO COUNTER-MEMORIrlL (E NO. 22)
311
(d) District of Diu-
Population ............... 14,170
At the rate of 6 bo1:tlcsper head ...... 85,020
Bottles of spirits of 60" or 14, 170 gallons.
Candies required of mhowra flower or jaggery
or date 157 or lbs. ............ 118,joo
Plus zo per cent. for breakage ....... 23,700
Quantity to be imported every year .... 14z,zoo
Round figures ..... 143,000
10316
No. - Confi., Bombay Castle, dated the 6th December 1918
45"
From
The Governor of Bombay,
To
His ExcelIency, Senor JOSE DE FREITASREBEIKO, Govcrnor-
General of Portugucse India.
1 have the honour to re:ier to the i:orrespondence ending with your
Excellency's No. 231. dated the z~st July 1916, on the subject of the
Customs, Salt and Excise ai-rangements in Daman and Kagar-Aveli and
the adjoining districts of BritishIndia.,and to inform Your Excellency
that the British Government, having carefully considcred the suggested
"Rases of Conocntion" set forth in a document communicated by the
Consul General for Portug;il at Bombay, have decided that they are
unable to agree tothe further consideraiion of these clauses which provide
for the interchange, free cif British 1:ustoms duty, of local products
between Daman and Nagar-Aveli and the exemption frorn such duty of
British products imported into thcse ti3rritorics. It follows that the reci-
procal claiise providing for the free transit of British productç through
the territories of the Port.uguese Government will be excluded from
consideration. Your Excel1t:ncy is doubtless aware that it has already
been agreed between the respectivc Governments that the clause relating
to the grant of permission for the export of salt works in Daman to
British India and to Native States chould hg omitted. The further
negotiations which itis yroposed to undertake will thus be confined
exclusively to the settlement of the arrangements in regard to the manu-
facture and sale of liquor, and the syecific clauses of the suggested
Bases of Convention whicli Iny Governinent are now prepared to iiiscuss
are the following, namely :--
1st
The Portuguese Governlnent engage to 'suppress the distillery at
Dadra within the period of -threemonths from the date of the ratification
of the Convention, keeping in Daman only one at Bensolor, and in
Nagar-Avely orle at Ambli, another at Candoli.
and ,
The Portuguese Government,engage that the strengtli ofthe spirits
manufactured in the central distilleries rcferred to in the fosegoing312 ANNEXES TO COUNTER-MEMORIAL (E NO. 22)
article shall be always equal to that manufactured in British Indian
territories being agreed to that, until further alteration by mutua1
accord of both Governments the strength of the spirits shall be of 25"
and 60" a.y.l., the former being allowed to be raised up to 27" and the
Iatterup to66".
3rd
The Portuguese Government engage to collect on the spirits manu-
factured at the distilleries referred to in basis ~st, the same rates of
distillation as are levied in the British India temitory on the spirits of
the same strength.
4th
The Portuguese Government engage to cause the spirits of mhowra
flower ta be sold in northern territories at the lowest price that should
be established in British India.
The Portuguese Governrnent reserve to themselves the right of giving
to any person or Company the exclusive right of manufacturing and
selling spiritinal1their northern territorieseithertagether or separately,
engaging that the sale price of the rnhowra spirits in the monopoliser's
spirits shop shall be the lowest established inthe preceding bases.
The Portuguese Government engage not to allow in the native liquor
shops to sel1 daily to one and the same person a quantity of native
spirits more than one imperial gallon, except on occasions of festival,
weddings, etc., under a licence obtained by the purchaser from the local
authority who shall grant it after making inquiries about the alleged
demand.
7th
The Portuguese Governrnent engage to cause the removal of the
native liquor shops to a distance of half a mile from the frontier.
The British Government should undertake the engagements mentioned
below-
9th
That in the territory of the Raja of Dharampur bounded by some
villages of Nagar Avely, provisions similar to those rnentioned in the
bases znd, 3rd, 4th, 6th and 7th shall be adopted; the latter two being
also adopted in British territories.
To aLiow the export to the Portuguese northern territories, free of
duties, of the quantity of the mhowra flower or another substance
necessary for the manufacture of the native spirits for the consumption
of the respective population estimated in the last census. ANNEXES TO COIINTER-MEAlORIAL (E XOS. 23-24) 313
To allow the native liqucbrshops of the villages of Dadra, Demni and
Tigra to be supplied with spirits for the consumption of the respective
population estimated in the 1st censiis from the distilleries of Nagar-
Avely, being the spirits transported under a pass granted witli Iegal
formalties. Without this cliiuse the distillery of Dadra cannot be sup-
pressed.
This agreement shall laçtfor a period of ten years and it may be
renewed every ten years by mutual accord of both parties.
2. On receipt of an intiination that Your Excellency agree to the
scope of the negotiations bi:ing defined as indicated above, the British
delegate will be instructed toarrange for a meeting with the delegates
of Your Excellency's Govemment.
Annex E. No. 23
Gazetteof India, 1924P,t. I, 9.474.
No. 2x45, dated the 2nd June, 1924
In exercise of the powers conferred by section19 of the Sea Customs
Act, 1878(VI11 of1878), the Governoi- General in Council is pleased to
prohibit the bringing of Saccharine by land into British India from any
of the foreign European Settlements, namely, Pondicherry, Karikal,
Goa and Daman.
- 0
Ret:oî.Ojjïce,Bombay
No. 218. pp. I:,3, Zr.
Service of Republic
Government of Portuguese India.
No. 225,dated Nova. Goa, the 2nd Decernber 1913.
The Secretary to the Govemment of Bombay,
Political Department.
In August last, it became necessary to send expeditiously fro~n this
city to Macau, via Bombay, 75 European Soldiers of Infantry.3I4 AKNEXES TO COUNTER-hIEMORIAL (E NO. 24)
The Consul General for Portugal having arranged for their passage,
the above soldiers were despatched by this Government on their journey,
in the belief that they would meet with no difficulty, since they would
leave entirely unarmed, just as they wcre unarmed in the City of Bombay
during their short stay there prior to embarkation. The two officers and
one Sergeant who accompanied thern %ventarmed as is permitted by the
agreement of 1908 to officersin transit of both nationalities.
The Portuguese Consul in Bombay in confining himself merely to
giving-intimation to the Bombay Secretariat was fullyunder the belief
that the agreement contained in the letter No. 8714 of the 7th December
1912 from the Bombay Secretariat to the Consul was applicable.
Similar intimations are also received in this Secretariat from the
British-Tndian authorities for similar purposes, as will beseen from the
accompanying copies of letters of the 15th May and 2nd September of
the current year, from the District Magistrate of Ratnagiri and the
Superintendent of Police of Kanara.
The Governor Gciieral, howe~rer, befortt whom your letter No. 5423
of 15th ultimo was placed, has directed me to state that, while much
regretting the present occurrence, which was otherwise quite unin-
tentional, has already issued the necessary instructions in order that it
may not be repeated in futtire.
Hcalth aiid Rrotherhood.
(Signzd) Ti. M. PEIXOTOVIEIRA.
Cliief Seçretary.
True Translation,
Joseph Boc.4~0.
Portuguese Translater to Governnient .
No. 4j8, dated zznd January rgzq
The Chief Secretary'to the Government of Portuguese India.
Sir,
With reference to your letter No. 22j dated the and December 1913,
I am directed to state that the agreement contained in the letter from
the Govt. of Bombay, No. 8714, dated the 7th December 1912, to the
Consul General for Portugal at Bombay, refers to reciprocal arratige-
ments relating to the passage of Police only and not of troops of the
British or Portuguese Governments through interveiling E'ortuguese or
British territory; it also requires that previous intimation should be
given to the local authorities hefore parties of police are despatched.
1have etc.
Intd. O.C. , .
I.N. 20,'~
Secretary to Govt. Annex E. No. 25
Rmvd ohca , ombay
191.5
POLITICAL DEPARTMEKT
No. 331. Part.1, pli25, zS,29, 31
CONSULADO GEKAL DE PORTUGAL
NA INDIA BRITANICA
Bombay, 13th January, ~915.
No. S.
The Secretary to Government,
Political Departmerit.
Bombay.
Sir,
1beg to bring to your nol:icethaII soldiers duIy armed of the Native
Regirnent of Daman, are transferred to Nagar-Aveiy and requr:st you
to be so good as to make tht: necessary communicationtothe conipetent
aiithoritieto allow them to proceed to their destination thro~igh the
British territory.
Thanking in anticipation.
1 have the honour to be,
Sir,
Your most obedieilt servant,
(Sfguiad)Aifredo CASAKOVA.
POLITICAL DEPARTMENT
Reg. No. 451
Letter from tlie Consul General for Portugal at Bombay.
No. 8 dated 13th January, 1915.
Stating that 11soldiers, dulp armed,of the Native Regiment of Daman
are transferred toNagar-A,\.ely, and reqiiesting to be good ,enciugh to
make the necessary commu.nication to the authorities concerned.
Subrnitted.
A copy of the letter ma:ybe forwrirded >o. thD.M. Surat, for such
action as may be necessary. and the Gmsul Generai may be so infnrmed.
Drafts rire putup.
With F.C.
Zntd. N'A 14/1 ANNEXES TO COUNTER-MEbIORIA (L NO. 26)
316
No. 266
P.D.
B.C. 15th Jany.'15.
To
The Consul General for Portugal
at Bombay.
Sir,
With reference to your lettNo. 8,nt. the 13th Jany191j,requesting
the issue of orders for allowin11 soldiers, duly armed of the Native
Regiment of Daman to proceed to Nagar-Avely, I am directed to inform
you that thenecessary instructions have been issuedthe D.M., Surat.
1 have etc.,
intd. (illegib1511
O.C.
Dy. Secy. to Govt.
Below a copy of a letter No. 8, di.the 13th Jany, 1915 ,rom the
Consul General for Portugal atBombay.
No. 267.
P.D.
R.C.15th Jany. '15.
Copy forwarded with compliments to the D.M. Surat, for suchaction
as may be necessary.
Intd. (illegibl1511
O.C.
Dy. Secy. to Govt.
Amex E. No. 26
RecordOsce, Bombuy
1915
POLITICAL DEPARTMENT
No 331. Part 1,pp. 131,133, 134, 135
Bombay, 22nd March, 1915.
CONSULADO CERAL DE P0RTI:GXL
NA INDIA RRITANICA
No. 86
The Deputy Secretary to Government,
Political Department.
Secretariat,
Bombay.
Sir,
I have the honour to bring to yoilr notice that shortly from Nova-Goa
will proceed to Nagar AveIya soldierofthe Health Department namedRafael Sarbinha, and request ]-ou to be so good as to iristruct the com-
petent Authorities allowing him to proceed to his destin t'on.
Thanking in anticipation.
1 have the honour to be,
Sir,
Yciurmost obedient servant,
(Signed) Antonio Pedro J. FERNAYDE~.
Actg. Chancellor
for Consul General for Portugal.
CONSULADO GEKAL DIS PORTUGAL
NA INDIA RRITANICA
Bombay, zznd March, rgrj.
No. 87
Ttie Deputy Secretary to Government,
Political Department.
Secretariat,
Bombay.
Sir,
1 have the honour to iilform you that shortly froni Damaun will
proceed to Nova-Goa a soldier belonging to the Native Regiment, and
request you to be so good as to make the necessary communications to
the competent Authorities :illowing him to proceed to hiç destination.
Thanking in anticipation,
1 have the honour to be,
Sir,
Your most obedient servant,
(Signed) Antonio Pedro J. FERNANDEZ.
Actg. Chancellor
for Consul General for Portugal.
A 2733 Poli.
Submitted.
Vide also K. I.
No. 2734 ante.
The usua1 drafts are put up.
Intd. N.A. 2413 No. 1807
P.D.
R.C.26th March '15.
To
The Consul General for Portugal
at Bombay.
Sir,
Witli reference to your Chancellor's letters Nos.86 5: 87, dt. the
zznd March 1915, requesting the issue of orders allowing a soldier
named Rafael Sarbinlia to proceed from Nova Goa ta Nagar Avely, and
another from Daman to Nova-Goa, 1 am directed to inform you that
the Iiecessary instructions havebeen issried tothe Commr. of Police,
Bombay.
1 have etc.
intd.(illegible)
O.C.
For Dy. Secy. to Govt.
Annex E. No. 27
Record O@ce, Bombuy
POLITICAL DEPARTMENT
No. 331. Part. 1,pp. 1,4, 5,7
CONSULADO GLRAL DE PORTUGAL
NA INDIA RHITANIC.4 Bombay, 5th January, 1915.
No. 3.
The Secretary to Government,
PoliticaDepartment.
Bombay,
Sir,
I beg to iniorm you that shortly will arrive h27esoldiers of Native
Regiment of Goa on their way to Daman and Diu and request you to be
so good as to issue the necessary orders for alIowing them to.lanhere
and to proceed their destination.
Thanking in anticipation.
1have the honour to be,
Sir,
Your most obedient Servant,
{Signod)Alfredo CASANOVA, ANXEXES TO COUNTER-MEMORIAL (E NO. 27) 3x9
POLITlCAL DEI'ARTMENT
A. Branch
Reg. No. 218
Letter from the Consul Geni:ral for Portugal at Bombay.
No. 3 dated 5th Jany 1915.
Stating that 27 soldiers of Native Regiment of Goa will shortly
arrive B'bay oii theirway to Daman and Diu, and requesting orders to
allow them to land in B'bay, and to proceed to their destination.
Subrnitted
I. A copy of the letter niay be forwarded to the Commr. of Police,
Bombay, for such action as may be necessary.
2. The Consul General rnay be informed of the action taken. Drafts
are put up.
With 17.C.
intd. N.A. 711
No. 92
P.D.
B.C. 8th Jany. '15.
To
Tlie Consul General for Portugal
. at Bombay.
Sir,
IVith referericto your let-teNo. 3, d.t. th5th Jany. 1~115requesting
the issue of orders for allowing27 solcliers oa Native Regimeni: from
Goa to land inBombay aiid procecd tci Daman and Diu, 1 am directed
to inform you that the neccsçary instructions have been issued to the
Commr. of Police, Bombay.
1 have etc.,
O.C.
Dy. Secy. to Govt.
Intd. N.A. 7/1
Below a copy of a letter No.3,dt. tlie 6th Jany19x5 rom the Consul-
General for Portugal at Borrthay.
No. 93
F'.D.
B.C. 8th Jany. 'Ij.
Copy forwarded with compliments to tlie Comnir. of Police, Bombay,
for such actionas may be necessary. O.C.
Dy. Secy. to Govt.
Intd. N.A. 711 ASSEXES TO COUNTER-MEMORIAL (E NO. 28)
320
Annex E. No. 28 '
RecordOfice,Bombay
1915
POLITICAL DEPARTMENT
No. 331. Part 1. pp.69-70, 73.
CONSULADO GERAL DE PORTUGAL
NA INDIA RKITANICA Bombay, 10th. February, 1915.
No. 38.
The Secretary to Government,
Political Department.
Bombay.
Sir,
1 beg to bring to your notice that shortly will arrive here from Goa
in order to proceed to Daman 1st. Sergeant of the Native Regiment of
lnfantry named Jose Azevedo Coelho and two soIdiers of the same
Regiment, Chondru Colgarcar and Bica Locu Naique, ancl request you
to be so good asto make the necessary communications to the competent
authorities allowing them to land here and proceed their destination.
Thanking in anticipation,
I have the honour tobe,
Sir,
Your most obedient servant,
(Signedj Alfredo CASANOVA.
A. 1414 POLL.
Submitted.
The usual communication may be made to the Commr: of Police,
E'bay, and the Consul GeneraI may be inforrned accordingly.
Drafts are put up.
With F.C.
intd. N.A.1112
Below a copy of a letter No.38 dt. the 10thFeby. 1915.
NO. 904.
P.D.
B.C. 12th Feby. '15,
Copy forwarded with compliments to the Commr. of Police, Bombay,
for such action as may be necessary.
intd. (illegible)
1212
O.C.
Dy, Secy. to Govt.
intd.N.A. 1112 -- ANNEXES TO COUNTER-MEMORIAL (E KO. 29) 32I
NO. 90.5.
P.D.
B.C. 12th Feby. '15.
To
The Consul General ior Portugal
at Bombay.
Sir,
Withreference to your lettcr No. 38,dt. the 10th Feby. 1915 request-
ing the issue of orders allowing the 1st. Sergeant of the Native Regiment
of infantry and two soldiers othe same Regiment, who are expected to
arrive in Bombay soon, to ~iroceedto Daman, I am directed to inforrn
you that the necessary inçtsuctions have been issued to the Commr. of
Police, Bombay. :
1 have etc.
intd. (illegible)2
O.C.
Dy. Secy. to Govt.
intd. N.A. 1112
Annex E. No. 29
Rei:ordOfice, Bombay
1915
POLIT:[CAL DEPARTMENT
No. 331. Part 1,pl).95-97,99.
CONSULADO GERAL DE PORTtrGAL
NA INDIA BRITANICA
Bombay, 8th, March, I!JI~,
No. 67.
The kcretary toGovernmeiit ,
Political Department.
Bombay.
Sir,
1 beg to bring to your notice that shortly will arrive here fromGoa
en route to Damaun nineteen soldiers of Infantry Regiment, and request
you to be so good as to rriake the necessary communications to the
competent authorities allowing them to land here and proceed their
destination.
Thanking in anticipation,
1 have the honour to be,
Sir,
Your most obedient servant,
(Sigrced)Antonio Pedro j. FERNANDEZ
Actg. Chancellor
for Consul General for Portugal.A. 2190. POLL.
Submitted.
The usual drafts are put up. With F.C.
intd. N.A. gj3
Below a copy of a letter No. 67, dt. the'8th March 1915 ,rom the
Consul Generai for Portugal at B'bay.
No. 1457.
P.D.
B.C. 10th March '15.
Copy forwarded with compliments to the Commr: ofPolice, Bombay,
for such action asmay be necessary.
intd. (illegible)O/^
O.C.
Dy. Secy. to Govt.
intd. N.A. g/3
NO. 1456.
P.D.
I3.C.10th Maich '15.
The Consul General for Portugal
at Bombay.
Sir,
With reference to your Chancellor's letter No. 67, dt. the 8th March
1915, requesting the issue of orders allowing19 soldiers of the Infantry
Regiment, who are expected shortly to arrive in Bombay from Goa to
proceed to Daman, 1 am directed to inform you that the necessary
instructions have been issued to the Commr: of Police, Bombay.
I.have etc.
intd. (iilegible)
1?/3
O.C.
' Dy. Secy. to Govt- :
intd. N.A. gj3 ANNEXES TO C(jUNTER-MEMORIAL (E NO. 30)
A.nnex E.No. 30
Record Ofice,Bombay
1915
POLITICAL DEPARTMENT
No. 331, Part 1, pp. 145-7,149
CONSULADO GERAL DE PORTUGAL
NA INDIA BRITANIC-4
Bombay, 29th. Mach, 1915.
No. 96.
The Deputy Secretary to Governrnent,
Political Department,
Secretariat,
Bombay.
Sir,
1 have the honour to iniorm you rhat from Damaun will shortIy
proceed to Nova-Goa 14soldiers of thi: Native Regirnent, and request
you to be so good as to niake the necessary communication to the
competent Authorities allowing them to proceed to their destination.
Thanking in anticipation,
I have the honour to be,
Sir,
Your most obedient servant,
(Signed) Antonio Pedro J. FERNANIIEZ
Actg. Chancellor
for Cohsul General.
A 2983 , , POLL.
Submitted with drafts to the Consut General for Portugal and the
Commr. of Police, Bombay.
Intd. B.L.B. 30/3/15
No. 1908.
. .
. ... PoI1.Deptt.
B.C. 30th March 191j.
The Consid General for Portugal
at Bombay.
. .
Sir,
With reference to your Chancellor'sletter No. 96dated the 29th.brarch
1915, stating that 14soldiers of the Native Regiment will proceed from ANNEXES TO COUNTER-MEMORIAL (ENO. 31)
324
Daman to Nova-Goa, I am directed to inform you that the necessary
instructions have been issued tohe Commr: of Police, Bombay.
1 have etc.
intd. (illegih30/3/r5
O.C.
for Dy. Secy. to Govt.
Belaw a copy of a letter No. 96dated the 2gth'March 1915from the
Consul General for Portugal at Bombay.
No. 1909
Poll. Ueptt.
B.C. 30th March 1915.
Copy forwarded with compliments to the Commr: of Police, Bombay,
forsuch action as may be necessary.
O.C.
for Dy. Secy. to Govt.
Intd. B.L.B. 30/3/15
Amex E.No. 31
RecordOfice, Bombay
1917
POLITICAL DEPARTMENT
No. 65, pp 107, 109, 1x0,III,113.
CONSULADO GERAL DE PORTUGAL
NA INDIA BRITANICA
Bombay, 10th. February, 1917.
The Deputy Secretary to Govemment.
Political Department.
Bombay.
Sir,
1 have the honour to inform you that shortly will leave Damaun for
Nagar-Aveli three soldierof NativeRegiment and to request you to be
so good as to instruct the competent Authorities at Cunta and Xala to
allow them to proceed to their destination.
Thanking you in anticipation.
1have the honour to be,
Sir,
Your most obdient servant,
(Signed) Alfred CASANOVA. ANNEXES TO COUNTER-MICMORIAL (E XO. 31)
325
CONSULADO GERAL DE PORTllGAL
NA INDXA:BRITANICA
Bombay, 10th. Febmq, 1917
No. 36.
The Deputy Secretary to Gcivernment.
PoliticaIDepartment.
Bombay.
Sir,
I have the honour to inform you that on or about the 20th inst. will
anive here from Nova-Goa inorder to proceed to Damaun six snldiers
of Native Regiment nameti Joao Antonio Afonso, Xencora Naique,
Joao Piedade Dias,Issiib Can,Gopala Matarop Salcar and Xeque Daud
and reqiiest you to be so good as to instruct the competent Authorities
to allow them to land at and proceed ta their destination.
Thanking in anticipation.
1 have the honour to bt:,
Sir,
Your most obedient servant
(Signed) Alfred CASANOVA.
Below copy of a letter Xo. 36, dated the 10th February 1917, from
the Consul-General for Portiigal at Bombay. Xo. 1226.
1'D.
B.C. 14th Feb. 19x7.
Copy forwarded with coinpliments to the Comrnissioner of Police,
Bombay, for necessary action.
intd. (illegible)
14/2/17
for Deputy Secy. to Govt.
The same to the,Coll.& P..A.,Surat, jwith the marginal change)
No. 1:227
1I.D..
B.C. 14th Feb. 1917.
'The consul General for Portugal
at Bombay.
Sir,
I am directed to acknowledge thereceiptof your letters Nos.36 and 37,
dated the 10th Feb. '17, oii the subjt:ctof the movements of certain ANNEXES TO COUNTER-MEMOBIAL (E NO. 32)
326
soldiers of Native Regiment, and to inform you that the necessary
instructions have been issued to the authorities concerned.
1 have etc.
intd. (illegible)14/2/,7
O.C.
for Deputy Secy. to Govt.
RecordOfice, Bombay
1917
POLITICAL DEPARTMENT
No.65, PP. 275,276,277
CONSULADO GERAL DE PORTUGAL
NA INDIA BRITANICA
Bombay, 7th August r9i7.
No. 49.
The Deputy Secretary to Government of Bombay.
Political Department,
Bombay.
Sir,
1 have the honour to inform you that shortly will amve to Bombay,
en route to Siivassa, Nagar-AveIy, from Goa, Captain Joao Antonio
Venceslau Me10together with a soldier named Antonio Paulo Fernandes,
and to request you to be so good as to issue necessasr jnstructions for
their freetransit.
Thankingin anticipation.
1 have the honour to be,
Sir.
Your most obedient servant.
(Signed) B. D'ALPOIM
Consul General for Portugal.
A. 6944 POLL.
Submitted.
Usud draft letterç are put up. intd. (illegible)8/8/17 ANNEXES TO COUNTER-MEMORIAL (E NO. 32) 327
POLITICAL DEI'ARTMENT
h'0.5930
Bombay Castle, 10th August 1917.
To
The Consul General for Portugal
at Bombay.
Sir,
With reference to yourIetlerNos. 48 & 49,dated the 7th August 1917,
regarding the arriva1 here of two officeis and a soldier from Gorotde
to Damaun and Nagar Avely, 1am to state that the necessary iristruc-
tions have been içsued tothe Commissioner of Police, Bombay.
1 have, etc.,
intd. (illegibleIO/S
O.C.
forDy. Secretary to Govt.
.Below copies of letters from the Consul General for Portugal at
Bombay No. 48,& 49 dated the 7th August 1917.
POLITICAL DEPARTMENT
NO. 5931
Bombay Castle,10th August 1917.
Copies forwarded with compliments to the Commissioner of Police,
Bombay, for the necessary action.
intd. (ilIegibl1018
O.C.
forDy. Secretary to Govt.328 AXKEXES TO COUNTER-MEMORIAL (E NO: 33)
ex E: No. 33
Record O@ce, Bombay
POLITICAL AND REFORMS DEPARTMENT '
A. Branch. File No. 3994
Part 1. pp. 89, 91, 93
CONSULADO GERAL DE FORTUGAI.
NA INDIA BRITANICA ~omba~,,z8th January 1933.
' BOMBAIM.
No. 36-DV
The Chief Secretary to the Government of Bombay,
Proc. 569
Political Department,
Very Uvgent . Bombay,
Sir,
I have the honour to inform you that 'in connection with the visitto
Darnao of H.E. the Governor General of Yortuguese India a detachment
of armed forces will have to move from Nagar-Avely to Damao (city}
and back, between the 30th instant and the4th Februaiy.
z. 1 should therefore be much obliged by your issuing the necessary
instructions to, the cornpetent Authorities in order to allow the transit
of the said forcein British terrory.
3. I would requèst you to kindly treat this matter as very urgent.
. .
1 have the honour to be,
Sir, . .
Your most obedient servant,
(Signet!) Antonio ALVES
Consul General for PortugaI.
POLITICAL DEPARTMENT
No. 3994-B
Bombay Castle, 30th January 1933.
From
C. W. A. Turner, Esquire, C.S.I., C.I.E.,
Chief Secretary to the Government of Bombay,
Political Department.
To
The Consul General for Portugal
at Bombay.
Sir,
Iam directed by the Governor in Council to acknowledge the receipt
of your letter No. 36-DV 569, dated the 28th January 1933, regarding ANNEXES TO COUNTER-RIEMORIA E 90. 33) 329
the proposed movements oi'a detachnient of arrned forces from and to
Nagar-Avely in connection with the visit of His Excellency the Governor
General of Portuguese India to Damao, and to Say that the net:essary
instructions have been issucd to the officers concerned.
1 have the honour to be,
c: .. .
Sir,
Your rnost obedient servant,
intd. (illegibIe30/1/33
O.C.
for Chief'Secretary to the Government of Bombay,
Political Department.
Below a copy of a letter from the Consul General for Portugal at
Bombay No. 36-VDj569, dated the 28th January 1933.
Bombay Castle, 30th january 1933.
Forwarded with complim.ents for information and guidance to:,
The Inspector Generiil of Police, Bombay Presidency.
The Deputy Inspectar General cifPolice,
Criminal Investigation Department.
The District Magistrate, Surat.
The District Magistrzte, Thana,
The District Superintendent s ofPolice, Surat,
The District Superintendent of I'oIice, Thana,
The Superintendent-cif Police, B.B>&C.I. Railway.
. .. 13yorder, etc.
intd. (illegible)/1/33
O.C.
For Chief Secretary to the Gove~nrnent of Bombay,
Political Department. ANNEXES TO COUNTER-hlEMORIAL (E NO. 34)
33O
Annex E. NO. 34
RecordOfice, Bombay
POLITICAL AND REFORMS DEPARTMENT
A. Branch. File No. 3994
Part- I PP-95,97199
CONSULADO GERAL DE PORTUGAL
NA INDIA BRIT.%NICA,
BOMBAIM. 29thJune 1933.
No. 419-DV
Proc. 570
Urgent
The Offg. ChiefSecretary to the Government of Bombay,
Political and Reforms Department,
Bombay.
Sir,
I have the honour to request you to be so good as to move the com-
petent Authorities to allowfree transit to two soldiers accompanying an
official of the Portuguese Revenue Department, who will carry funds
from Damao to Nagar-Aveli and thence to Bombay on the 7th July next.
I have the honour to be,
Sir,
Your most obedient servant,
(Signed) Antonio ALVES.
Consul General for Portugal.
POLITICAL AND REFORMS DEPARTMENT
No. 39944
Bombay Castle, 30th June 1933.
From
C. W. A. Turner, Esquire, C.S.I., C.I.E.,
Chief Secretary to the Governrnent of Bombay,
Political and-Refoms~.Departrnent.
lo
The Consul General for Portugal
at Bombay.
Subiect: Free transit totwo Portuguese soldiers accoinpanying an
officia1of the Portuguese Revenue Department.
Sir,
I am directed by the Governor in Council ta acknowledge the receipt
of your letter No. q~g-Dv, dated the 29th instant, regarding the free
transit to two soldiers accompanying an official of the Portuguese AKNEXES TO COUNTER-MEMORIAL (E XO. 34) 33;
Revenue Department, and to Say that the necessary instructions have
been issued to the officersconcerned.
1 have the honoiir to be,
Sir,
Your most obedient servant,
intd. C.W.A.T. 30/6/33
O.C.
Chief Secretmy to the Government of Bombay,
Political aiid Reforrns Department.
POLITICAL AND RFFOliMS DEPARTMENT
NO.399.1-A
Bombay Castle, goth June 1433.
Forwarded with complimicnts for information and guidance to:-
The Inspector Generiilof Police, Bombay Presidency,
The Deputy Inspectcir General of Police,
Crirninal Investization Department.
The Commiçsioner of Police, Bombay.
The Collecterof Cuçtoms, Bombay.
The District Magistrate, Surat.
The District Superintiendent of Police, Surat,
The Superintendent ofPolice, B.B.& C.I. Railway.
By order of the Governoi-in Council,
(C.W. A. TURNER)
O.C.
Chief tjecretary to the Government of Bombay,
Politicalarid Reforms Department.332 ANNEXES TO COUNTER-UEMORIAL (E NO. 35)
Anncx E. NO. 35
RecordO@, B~mbay
1926-'36
POLITICALAND REFORMSDEPARTMENT
A Eranch. File No. 3994
Part 1, pp. 117, 119, 121
CONSULADO CERAL DE POKTUGAL
NA INDIA ERITANICA,
BOMBAIM.
Bombay, 26th April 1934.
NO. 333-DV I
Proc. 570
The Chief Secretary to .the Government of Bombay,
. Political andReforms Department,
Bombay.
Sir,
1have the hononr to request you tobe sogood as to issue the necessary
instructions to the competent Authorities to allow free translt to an
armed escort of 2 soldiers who, on the 7th. proximo, will move from
Damao to Silvassa and from Silvassa to Bombay and vice-versa to
accompany a Portuguese Official carrying money to deposit in Bombay.
Ihave the honour to be,
Sir,
. 'I'our most obedient servant, :
(Signed) -4ntonio Pedro J. FERNXPJDEZ,
Vice Consul,
, . Acting Consul General for Portiigal.
. .
POLITICALAND REFORMS DEPARTMENT
No. 39944
13ombay Castle, 27th -4pril 1934.
From
C. W. A. Turner, Esquire, C.S.I., C.I.E.,
Chief Secretary to the Government of Bombay,
Political and Reforms Department.
To
The Vice Consul in charge of the
Consulate General for Portugal
at Bombay.
sr~hjdct:-Free transit to an arrned escort of two soldiers accom-
8.panying.â Portuguese Official.
Sir,
1 am directed by the Governor in Council to acknowledge the receipt
of your letter No. 331-DV, dated the 26th Apri11934, regarding the free ANNEXES TO COUNTER-MEMORIAL (E NO. 35)
333
transit, to anarmed escort of two soldiers accompanying a Portuguese
Official,nd to state that necessary instructions have been issued to the
officers concerned.
1 have the honour to be,
Sir,
Your most obedient servant,
intd. (illegibl2714
O.C.
For Chief Secretary to the Government of Bombay,
Political and Reforms ,Department. : .
(F.C. below)
Below a copy of a letter from thVice Consulin charge of the Consulate
General for Portugal at Bonnbay, No. 333-DVdated the.26th April~1934.
POLITICAL AND REFORMS DEPARTMENT
Bombay Castle, 27th April 1934.
Fonvarded with cornpIinients for i~iformation and guidance to:-
The Inspector General o:CPolice,
Bombay Presidency,
The Deputp Inspector General of Police, Criminal
Investigation Department,
The Commissioner of Police, Bombay,
The Collector of Customs, Bombay,
The District Magistrate, ISurat,
The District Superintendent of Police, Surat,
The Superintendent of Police, B.B. & C.I.Railway.
By order, etc.
intd.(illegible2714
O.C.
For Chief Secretary to the Government of Bombay
PoliticaI arid Reforms Department. Annex E. No. 36
Record Ofice,Bombay
1926-36
POLITICAL ANI) REFORMS DEPARTMENT
A Branch. File No. 3994
Part 1, pp.129, 131, 133,135
CONSUI.AD0 GERAL DE PORTUGAL
NA XNDIA BRITANICA,
ROMBAIM.
Bombay, 15th March 1935.
Proc. 570
The Chief Secretary to the Government of Bombay,
I'oliticaand Reforms Department,
Bombay.
Sir,
1have the honour to request you to be so good asto move the corn-
petent Authorities to alIow free transit to two armed soldiers who will be
escoctinga Portugueçe Government Official on the 26th, instant from
Damao to Silvassa and from Silvassa to Bombay and back, as he will
be carryingwith him rnoney to be deposited in Bombay.
1 have the'honour to be,
Sir,
Your most obedient servant,,
(Signed) Carlos DA MESQUITA
Consul for General Portugal.
POLITICAL AND REFORMS DEPARTMENT
No. 3994-A
Bombay Cas*, 19th March 1935.
From
H. T. amb brick Esquire,
Deputy Secretary to the Government ofBombay,
Political and Reforms Department.
To
~he Consul Ggneral for Portugal
at Bombay.'
Subject :-Freetransit to an armed escort of two soldiers accom-
panying a Portuguese Oficial.
Sir,
1 am directed by the Governor in Council to acknowledge the receipt
of your letteNo. 95-DV, dated the 15th March 1935 ,egarding the free
transit to an armed escort oftwo soldiers accornpanying a PortugueseOfficial,and to state that necessary instructions have been issued to
the ofiïcers concerned.
1have the honour to be,
Sir,
Your most obedient servant,
intd.(illegibler313
O.C.
Deputy Secretary to the Government of Bombay
PoliticalartdReforms Department.
Below a copy of a Ietter from the Consul General for Portugal ai
I,ombay, No. 95-DV, dated the 15th blarch 1535.
POLITICAL AND REFOKhlS DEPARTMENT
No. 3994-A
Rombay Castle,15th March 153 j.
Forwarded with compliments for information and guidance to :-
The Inspector Gencral of Police, Bonibay Presidency,
The neputy Inspector General of Police, Criminal Investigation
Department,
The Commissioner of Police, Bombay,
The CoIlector of SaIt Iievenue,Romt-iay,
The District hlagiçtrate, Surat,
The District Superintendent of PolictiSurat,
The Superintendent of PolhceR.B. r%-C.1. Railu-:%y.
By order, etc.
intd. (illegibl19/3
O.C.
Deputy Secretary to the Goveriiment of Bombay,
E1olitica1andReforms Department.
CONSULADO GERAL DE PORTUGAL
NA INDIA BRITANICA,
ROMBAIM.
Bombay, 25th March 15135,
No: 100-DV
l'roc.570
The Chief Secretary to the Govei-nment of Bombay,
Politicaland ReformsDepartment,
Bombay.
Sir,
1 have the honour to ackiiowledge, with thanks, the receipt of your
letter no.3994-A, dated the 19th instant, intimating that the neceçsaryinstructions havebeen issued to the officers concerned, regardinthe
free transit to two soldiers accompanying a Portuguese Official.
1 have the honour to be,
Sir,
Your most obedient servant,
(Signed C)arlosDA MESQUITA
Consul General for Portugal.
Annex E. No.37
Record-Ofice,Bombay
1926-36
POLITICAL AND REFORMS DEPARTMENT
Brarich A, File No. 3994
Part. 1, pp. 137, 139141. 143
CONSULADO GERAL DE PORTUGAL
NA INDIA BRITANICA,
BOMBAIM.
Bombay, 16th July1935.
NO. 226-DV
Proc.570
The Chief Secretary to the Government of Bombay,
Poiitical and Reforms Department,
Bombay.
Sir,
1have the honour to request you tobe sogood as to move the com-
petent Authorities to allow free transan armed escort of two soldiers
accompanying a Portuguese Officiaon the 26th instant, from Damao
toSilvassa and from Silvassa to Bombay and back, as the same Officia1
willbe carrying with himmoney to be deposited in Bombay.
1have the honour to be,
Sir,
Your rnost obedient servant,
(Signed) Carlos DA MESQUITA
Consul General for Portugal. ANNEXES TO COUNTER-MEMORIAL (E NO. 37)
337
POLITICAL AND REFOKMS DEPARTMENT
No. 39944
Bombay Castle, zottl July 1035.
From
J. H. Garrett, Esquiri:C.S.I.,
Offg.Chief Secretary to the Government of Bombay,
Political and Keforrns Department.
To
The Consul General for Portugal
at Bombay.
Subject:-Free transit: to an armed cscort of two soldiers accom-
panying a I'ortuguese Official.
Sir,
1am directed by the Govtirnor in Council to acknowledge the receipt
of your letter No. 226-DV, dated the 16th July 1935, regarding the free
transit toan armed escort cif two soldiers accompanying a Portuguese
Official,nd to state that necessary inslructions have been issued to the
officers concerned.
1 have the honour to be, -
Sir,
Your most obedient Servant,
intd. (illegibl1917 '
O.C.
For Of'fgChief Stxretary to the Government of
Bombay, Political and Reforms Department.
Beiow a copy of a letter from the Consul General for Portugal at
Bombay, No. 226-DV, dated'the 16th July 1935.
POLITICAL AND REFORMS DEPARTMENT
NO. 3994-A
Bombay Castle, 20th July 1935.
Forwarded with cornpIirnents for information and guidance to: :--
The Inspector General of I'olice, Bombay Presidéncy,
Criminal Investigation
The Deputy Inspector General of Police,
Department,
The Commissioner ofPolice, Bombay,
The Collector of Salt Revenue, Bombay,
The District Magistrate, Siirat,
The District Superintendeiit of Police, Surat,
The Superintendent of Police, B.B. 8: C.I. Railway.
By order, etc.
intd. (illegibl1917
O.C.
For Offg.Chief secretary to the Government of Bombay,
Political and Reforms Departmerit.CONSULADO GEKAL DE PORTUGAL
NA INDIA BRITANICA
BOMBAIhl
Bombay, zznd July 1935-
No. 231-DV
Proc. 570
The Chief Secretary to the Government of Bombay,
Political and Reforms Department,
Bombay.
Sir,
1 have the honour to acknowledge, with thanks, the receipt of your
letter no. 399.+-.4,dated the zoth, instant, intirnating that the necessary
instructions have been issued to the officers concerned, regardingthe
free transit to two soldiers accompanyinga Portuguese Official.
1 have the Iionour to be,
Sir,
ITour most obedient servant,
(Signed) CarlosDA MESQUITA,
Consul General for Portugal.
Annex E. No. 38
Record O@ce, Bombay
1926-36
POLITICAL AND REFORRIS DEPARTRIENT
A Branch. File No. 3994
Part 1. pp. 273,274, 275, 279
No. 3gg4/10653-A
Political and Services Department.
Bombay Castle, 27th May 1940-
From
Dr. H. T.Sorley, C.1. E.,
Chief Secretary tthe Goverriment ofBombay,
Politicalnd Services Department.
To
The Chief of the Cabinet,
Govcrnment of Portuguese India,
Nova-Goa.
Sir,
With reference to your telegram No. 35,dated the zjrd hlay, I940*
regarding the entryinto Bombay on the 5th June, 1940, of armed guard
for the purpose of accompanying the treastiry officer, Silvassa, who is-
going to deposit funds jn the Bank "Ultramarino" in Bombay City, 1am directed to state that instructions have been issued to the officers
concerned for the grant of inecessary facilities.
1have the honour to be,
Sir,
Your most obedient servant,
O.C.
intd.blI zj/5/50
M. ISAAC,
for ChiefSecretary io the Government of Bombay,
Political and Services Department.
POLITICAL ABIDSERVICES DEPARTMENT
Bombay Castle, 27th May 1940.
Copy, with a copy of the translation of the telegram under reference,
forwarded with compliments to the undermentioned officers for infor-
mation and such action as nlay be necessary.
Ry ordt:r of the Governor of Bombay,
(Signeci) M. ISAAC25/5/40
O.C.
For Chief Secretary to the Government of Bombay,
Political and Services Department.
To
The Inspector General of I'olice, Province of Bombay,
The Deputy Inspector General of Police, Criminal Investigation
Department,
The Commissjoner of Police, Bombay,
The District Magistrate, Surat,
Tlie DistrictSupcrintendent of Polici:, Surat,
The Superintendent of Police, I3.B. i%C.I. Railway,
The Collector of Salt Kevenue,
The Collector of Customs, Rombay
Copy of the translation of the telegram from the Chief of the Cabinet,
Nova Goa, No. 35,dated the.23rd May 1940.
"Request you kindly to permit tIie i:ntry into Rombay on 5th June
next of armed guard for tlic pirrpose of accomprinying the trensury
oEcer, Silvasça, who isgoing to deposit funds in the BanIr 'Ultramarino'
in that City." - . ,34O ANNEXES TO COUNTER-MEMORIAL (E NO. 39)
Service of the Kepublic
General Government
Cabinet Department
No. i75/G
Case No- 53-F1939/59
Issue No. 690
Nova-Goa, 30th May 1940.
To
The Chief Secretary to the Government of Bombay,
Political and Services Department,
Bombay
Most Excellent Sir,
Acknowledging the receipt of letter No. 3994110653-A of the 27th
instant,I have the honour to ihank you for the facilities granted.
Please accept the assurances omy regard.
(Signed) A. Delduque DA COSTA,
Major
Chief of the Cabinet.
True Translation
(Signcd) Louis G. PI~TO
Portuguese Translator to Government.
Home Department,
5th June 1940
Annex E. No. 39
Act No. XXXI. of 1860
An Act relating to the ~anufacture,Importation, and Sale of Armç
and Ammunition, and for regulating the right to keep and use the same,
and to give power of disarming in certain cases.
Whereas it is expedient to regulate the manufacture, importation,
and sale of Arms and Ammunition and the right to keep and use the
same, and also to give power of disarming districts and places in certain
cases :It ienacted as follows:-
17. No cannon, howitzer, or mortar, and no arms, percussion caps,
sulphur, saltpetregunpowder, or other ammunition, shall be imported
either by seaor byland into any part of the territories in the possession
and under the Government of India except under a licence from the
Governor-General of India in Council, or from some officer authorised
inthat behalf by the Governor-General of India in Council. ANNEXES TO C:OUNTER-MEMORIAL (E NO. 40) 34I
Annex E. No. 40
Rr:cwdOfice, Bombay
POLITICAL AND REFORMS DEPARTMENT
A Bsanch. File No. 3994
Part. 1 pp.211, 2x3
GOVERNMENT OF THE STATE OF INDIA,
66
Issue No. 52
Nova Goa, 11th January 1939.
The Governor ofBombay.
Your Excellency,
1 have the honour to recpest of Your Excellency thatthe necessary
orders may be issued in order that free transit rnay be allowed to three
muskets "Snyder" 14mm 11/94which are being sent bacfrom Silvassa
(Nagar-Aveli) to the headcluarterof the Police Force atDarnaunand
to another three which arebeingsent from Damaun to that locality to
replace the former.
1 avaiI myself of the opportunity to renew to Your Excellency the
assurances ofmy highest regard.
(Signed)Jose CABRAL,
Governor Generd.
True Tsansaltion
(Signed Lo)uis G. PINTO,
Portupiese Translator to Government.
Home Department
16th January 1939.
POLITICAL AND SERVICES DEPARTMENT
NO.3994-A
Bombay Castle, 25th January 1939.
From
SirGilbert Wiles, K.C.I.E., C.S.I.,
Chief Secretary to the Goverriment of Bombay,
Political and Sei-vicesDepa.rtment.
To
The Chief ofthe Cabinet,
Government of Portuguese India,
Nova Goa.
Sir,
I am directed to acknowledge the receipt of the Ietter HisExcel-
lency the Governor General of Portugiiese Tndia, to His Exceliency the ANNEXES TO COUNTER-hlEMORIAL (E NO. 40)
342
Governor of Bombay, Ko. 52,.dated the 11th January 1939, regarding
the transit of three muskets, "Snyder" 14 mm Ml94 which are being
sent back by the Governrnent of Portuguese India from Silvassa (Nagar-
Aveli) to the headquarters of the Police Force at Damaun and of another
three which are being sent from Damaun to Silvassa to replace the former
and to state that instructions have been issued to the officers concerned
for thegant of necessary facilities.
I have the lionour tobe,
Sir,
Your most obedient servant,
intd. (illegib2511
O.C.
for Chief Secretary to the Government of Bombay
Political and Services Department.
POLITICAL AND SERVICES DEPARTMENT
Bombay Castle, 25th January 1939.
Copy, with a copy of a translation of the letter under reference,
forwarded with compliments to the undermentioned officers for infor-
mation and guidance.
By order of the Governor of Bombay
O.C. intd. (illegibl2511
for Chief Secretary to the Government of Bombay,
Political and Services Department.
To
The Inspector General of Police, Province of Bombay,
The Duputy Inspector General of Police,
Criminal Investigation Department,
The District Magistrate,Surat.
The District Superintendent ofPolice, Surat,
The Superintendent ofPolice,R.B. & C.I. Railway,
The Collecterof Customs, Bombay. ANNEXES TO COUNTER-MEMORIAL (E S0. 41) 343
~lnnex E. No. 41
Record Ofice,Bombay
1926-36
POLITICAL Ah"DREFOKMS DEPARTMENT
A Branch. File No. 3994
Part 1 pp. 219,221, 222
Government of the State of India.
Nova-Goa, 24th March 1939.
No-435.
Issue No.374.
To
The Governor of Bombay.
Your Excellency,
1 have the honour to request Your Excellency that the necessary
orders may be issued in order that free transit may be allowed to
8 muskets 8mm. M/86-89 (complete) rvith 400ball-cartridgm/gg and
also to one revolveMl86nrith the respective cartridges numberin50.
These arms and ammunitio-n will be sent from the Police Command of
Damaun to the Division of :Silvassa(Nagar-Aveli).
1 avail myself of the occasion to renew to Your Excellency the assur-
ances ofmy highest regard.
(Signe dose CABRAL
Governor General.
'CrueTranslation,
Home Department
29th Mach 1939- (Signed)1-ouisG. PINTO,
Portuguese Translator to Governrnent.
POLITICAL AKD SERVICES DEPARTMENT
399415853-A
I3ombay Castle,4th April1939.
From
SirGilbert WilesK.C.I.E., C.S.I.,
Chief Secretary to the Government of Bombay,
Politicalnd Service:; Department.
To
The Chief othe Cabinet,
Government of Portuguese India,
Nova Goa.
Sir,
With reference to the letter fHis Excellency the Governor General
of Portuguese India to His ExcellentheGovernor of Bombay, No. 435,344 ANNEXES TO COUNTER-MEMORIAL (E NO. 41)
dated the 24th March 1939,regarding the transit of 8 .muskets 8mm,
M/86-89 (complete) with 400 bal1 cartridges m/gg and one revolver
M/86 with the respective cartridges nurnbering 50 which are to be sent
from the Police Command of Damaun to the Division of Si~vassa(Nagar-
Aveli), 1am directed to state that instructions have been issued to the
officersconcerned for the gant of necessary facilities.
1 have the honour to be,
Sir,
Your most obedient servant,
O.C. intd. (illegible)4/4
For Chief Secretary to the Government of Bombay,
Political and Services Department.
POLITICALAND SERVICES DEPARTMENT
No. 399415853-A
Bombay Castle, 4th April 1939.
Capy, with a copy of the translation of the letter under reply,for-
warded with compliments to the undermentioned officersfor information
and guidance. By order of the Governor of Bombay.
O.C. intd. (illegible)
414
For Chief Secretary to the Government of Bombay,
Political and Services Department.
The Inspector General of Police, Province of Bombay,
The Deputy Inspector General.of Police,
Criminal Investigation Department,
The District Magistrate, Surat,
The District Superintendent of Police, Surat,
The Superintendent of Police, B.B.& C.I. Railway,
The Collector ofCustoms, Bombay, ANNEXES TO COUNTER-MEMORIAL (E NO. 42) 345
,4mex E. No. 42
Rccûrd OFce,Bombay
1926-36
- POLITICAL AND REFORMS DEPARTMENT
A B~.anch. File No. 3994
Part 1, pp. 263, 265, 266
Service of the Republic ,
General Govarnment of the State of India
Cabinet Department
No. r26/G
Case No. 8
Issue No. 501
Nova-Goa, 17th April 1940.
The Chief Secretary .tothe Government of Bombay,
Political and ServiceijDepartment,
Bombay.
Most Excellent Sir,
1 have the honour to request of you the necessary orders for the free
transitof:
Cartridges with shot 8 mm. m/8g. ......... 1,000
Cartridges with shot 8mm. m/gg .......... r,ooo .
Cartridges with shot 14mm. m194. ......... 50.000
which have to be sent from the Command of the Police Force of india
in Damaun to the Division ofSilvassa (District of Nagar AveIi), neces-
sitating thus their having to pass throirgh British territory.
Please accept the assurance ofiy regard.
(Signed) A. Delduqiie DA COSTA
Major
Chief of the Cabinet.
Home Department.
True Translation
23rd ApriI 1940. (Signedi Louis G. PINTO,
Portuguese Translator to Government. ANSEXES TO COUNTER-MEMORIAL (E NO. 42)
346
POLITICAL AND SERVICES DEPARTMENT
No, 399418741-A
Bombay Castle, 27th April 1940.
From
Dr. H. T.Sorley, C.I.E.,
Chief Secretary to the Governrnent of Bombay,
Political and Services Department.
To
The Chief of the Cabinet,
Government of Portuguese India, Nova Goa.
Sir,
. With reference to your letter No. 126G dated the 17th April 1940,
regarding the transit of:
Cartridges withshot 8 mm. mj8g. ......... 1,000
Cartridges.with shot8 mm. mjgg .......... 1,000
Cartridges with shot14mm. m/gq. ......... 50,000
which have to be sent from the Command of the Police Force in Damaun
to the Division of Silvassa (District of Nagar Aveli), I am directed to state
that instructions have been issued to theficers concerned for the grant
of necessary facilities.
1have the honour to be,
Sir,
Your most obedient servant,
O.C. intd. (illegibl2714
For Chief Secretary to the Government of Bombay,
Political and Services Department.
POLITICAL AND SERVICES DEPARTMENT
No. 399418741-A
Bombay Castle, 27th April 1940.
Copy, with a copy of the translation of the letter underepIy, for-
warded with compliments to the undermentioned officers for information
and guidance.
By order of the Governor of Bombay,
O.C. intd. (illegib2714
For Chief Secretary to the Government of Bombay,
Political and Services Department.
To
The Inçpector General of Police, Province Bombay,
The Deputy Inspector General of Police, Criminal Investigation
Department, ANNEXES TO COUNTER-MISMORIAL (E SU. 43)
The District Magistrate, Surat,
The District Superintendenof 1301ice,Surat,
The Superintendentof Police, B.B. &C.I.RaiIway,
The Collector of Custorns, Rombay,
The Collector of Salt Revenue, Elornbay.
AInnex E. No.43
RecordOfice, Bombay
1917
POLIT1 CAL DEPARTMENT
No. 1840
CONSULAD GOERAL DE PORTUGAL
NA
INDIA INGLEZA.
Bombay, 1stSeptember sg17.
NO. 133
From
B. ~'ALPoI~~E, squire,
Consul-General for Pclrtugal
in British India-Bonibay.
To
The Sccretary to Govcrnment of Bombay,
Political Department,
Bombay.
Sir,
I havethe honour to inforni you that a Portuguese Government servant
Mr. Carlos Augusto Belem Torres arrived atBombay on the 15th May
ultimo, from Goa en route to Nagar-Avely. He wacarryingtwo sporting
guns (S.B.M.L. and D.R.M.L..) which were detained by the Prevtrntive
Authorities.As these pins riftepaying the respective duty are to be
forwarded to the owner at Kagar Avely 1beg to request- youto be so
good as to arrange for a license to be granted to export the same guns.
1 have the honour tbe,
Sir.
Your most obedicnt Servant.
(Sigmd) B. d'Alpoirn
Consu1:General
POLITICAL DEPARTMENT
C. BRANCH
Reg. No. 7800
Letter from the Consul GeneraI for PortiigBritishIndia-Bornùay.
No. 133, dated the1stSeptember 1917.348 ANNEXES TO COUNTER-MEMORIAL (E NO. 43)
Stating that when Mr. Carlos Augusto Belern Torres arrivedin Bombay
on the 15th May 1917 he hrought with him from Goa en route to Nagar
Avely two sporting guns (S.B.M.L. and D.M.B.L.) which were detained
by the Customs authorities in Bombay and requesting to grant an export
license for these two guns after receiving the required fees.
Submitted
Consul's letter rnay in the first instance be acknowledged.
(Draft put up)
intd. (illegible) 319
Submitted.
The transport of the two sporting guns rnentioned in letter No. r33,
dated the 1st September 1917, from the Consul General for Portugal at
Bombay, amounts to an import into and export from British India.
The importation .of Arms and Ammunition into British India, from
Portuguese India is prohibitedunder Rule 7 of the Indian Arms Rules
of ~gog.Owing to the present restrictions imposed on the export of Arms
and Ammunition from British India the Govt. of Bombay can not also
grant a license for thexport of these two sporting guns. In both cases
the Govt. of India's sanction is necessary.
Before taking ,any action the papers rnay be referredU.O.R. to R.D.
and the Collector of Customs Bombay.
intd. ASC. 519
Dy. Secy.
U.0 R. No. 6776 dt.5-9-17 to the Revenue Dept. & the Collector of
Customs, Bombay.
Rev. Dep.
Submitted.
As export of arms of al1descriptions is entirely prohibited the sanction
of the G. of 1. will be necessary as stated in theP.D. note above. The
papers may be passed on to Collr. of Customs, Bombay.
intd.M.C. 1619
N.R. No. 11207
17-9-17
Recd. 25/9/17 S.R. 6562-W of 18-9-17.
Returned.
a. Under the list of export prohibitions apresent jn force, expwt of
arms is not permissible to Portuguese Possessions in India, though they
could go to those destinations under the generaI exceptions to theNoti-
fication of July rgr6. The practice hitherto followed here has been to
waive the restrictions on the export of arms and ammunition in cases
where the articles are exported by exempted persons as accompanied
or unaccornpanied baggage, provided that the quantity in each case is
reasonable (vide unofficial reference from the Revenue Department No.
2480 ,ated the 2nd March, 191.i). The question of continuing this prac-
tice has been referred by me to the Government of India in view of
demi-officia1orders received from that Government in connection with
export of arms to China, Siam, the Dutch East Indies and Macao. 1 am
also referring to that Government the question whether the general ANNEXES TO COU-ITER-MEMORIAL (E X0, 43)
349
exceptions to the prohibitory list of Jilly 1916 should still be regarded
as in force.
3. In the circumstances, it appears desirable to obtain the orders of the
Government of India regarding the cxport of the sportingguns in ques-
tion.
(Siglied)N. WHITTY 25/9/17
for CoIlector of Customs
Unofficial reference to the Chief Secretary to
Government, Revenue Departnient, R.S.R.
No. 6562W dated 25th September 1917.
Suhmitted with refercnce to the ofice note dt. 15-9-17.
2 With ref. to the last sentence of para. z of Collr's U.O. note dt.
25th idem it rnay be noted that in para. of their letter No. 7139-W-II dt.
12th Aug. 1916 to al1Collrs. of Customs the G. and 1. observed with ref.
to the first itemin the lists accompanying the letter that these "munition"
items had been regrouped and that the 'local exceptions' i.e.in favour of
French & Portuguese India, Ceylon & the Straits Settlement removed.
This shows that the general exceptions indicated at the top of List B (i)
accompanying the G. of I.'sletter No. 5775-W-II dated 12-7-16 were no
longer applicable except where specifically stated. In their letter No.
5442-C-W dt. 15-5-17 to a11C:olIrs.of Customs the G. of 1. again observed
in paras. 10-12 that the local exceptions in favour of exports for use or
consurnption in Portuguese & French possessions in India & Ceylon
& Straits Settlements had been droppeci in the case of the articles men-
tioned therein aiid that al1other local exceptions were shown inthe form
of footnotes. It wjll be seen from the (;.of 1. Notfn. Eo. 5355 C.W. dt.
12-j-17 that wherever 'local' exceptions are considered neccssary they
are shown in the footnote in respect of 1:hearticles concerned. The doubt
expressed in the last sentence of para. z. of the Collr's U.O.note dt.
25-9-17 isnot ttierefore understood. Itis however not neceçsary to refer
these papers again to the Collr. They may be returned U.O. to P.D. with
the Collr's. note. At the sarne time the: Collr. may be asked to furnish
this Dep. with the replies of the G. of 1. to the references to that Govt.
mentioned in para. 2 of hisnote. A draft u.0.r. to the Collr. is putup.
intd. (illegibl5/10
Uri.Ref. No. 12172
-- -
9110117
C 9141 POLI,.
Submitted with reference to u.0. dt. 5-9-17.The action proposed therein
rnaynow be taken.
Draft put up.
intd. (illegible10110
Where are Ourown papers about this "local exceptions"? 1have noted
on the question several times.
intd. (illegiblej 1o/i:o/17
Secy.
Respectfully resubmi1:ted.
2. The Secy. presumably i:efers to the notes recorded by him at pages
24 & 43 & 44 of Comp. No. 171611916.35O ANNEXES TO COUKTER-MEMORIAL (E NO. 43)
3. The interpretation which was then put on the Govt'.of India, Cam.
& Ind. Dept. Notfn. No. 7133-W-II dt. 12-8-16 was possible in vjew of
para 5 of the Comm. & Ind. Dept. letters No. 7139-W-II dt. 12-8-16.
addressed to al1 ColIectors of Customs. The Notification from the G.
of 1. in the Corn. & Ind. Dept. No. 5385-C.W. dt. 12-5-1917, which
supersedes al1 the prev-bus notfns. & orders on the subject does iiot
contain any similar qualifying clause. The proviso No. (V) referred tciin
the Secy'snote of 14-12-16is still there, but byitself it doesnotapparenily
affect the question at issue, as the Customs authorities mentioned
therein are not empowered to issue licenses for the export of Arms &
Ammn which can only be granted under the Arms Act by the Officers
specially empowered by the G. of 1. for the purpose.
4. Attention is also invited to the first sentence of nar2 of the letter
frok the Govt. of 1 Dept. of Corn. & Ind. No. 7608 di.3-7-17 embodied
in R.D. Memo NO. -587 dt. 14-7-1j.
315 Compl.
Thro: J.D. 11/10
Seen in J.D.
Secy. intd. F. S.11/10
In his letter No. 11571-W-II dd. 23.10.16. Mr. Hardy told us specifi-
cally that, under para. 5 of the circular letter to Collrs. of Customs
No. 7139-W-II, dd. 12.8.16, we cld. still give licenses to export cartndges
to Ceylon; & that the sanction of the G. of 1. to such licenses was not
necessary until specific orders issued to the contrary. As 1 pointed out
at the time, his meaning was quite clear. In withdrawing the exceptional
permission to export without license to certain places, the G. of I., had
not withdrawn the powers of the local Govt. to grant licenses to those
places. Para. 5 of the circular letter, read with proviso (v), authorised
the continued grant of licenses by C. of P.
2. 1 regret that the papers were not shown to R.D. at the time: it was
my mistake.
3. Port. India is in exactly the same position as Ceylon, & unIess
"specific orders to the.contraryn have issued, C. of P. is still authorised
to issue licenses. Presurnably the notificat. of May last constitutes such
orders.
4. R.D. shd. see after issue of the letter.
intd. (illegiblI1.10.
U.O.R., No. 7775 dt. 12.10.17.to the
Rev. Dept. (after issue)
No. 7766
Pol. Dept.
B.C. 12th Oct. 1917.
To
The Pol. Secy. to the Govt. India
For. BrPol. Dept.
Sir,
I am directed to state that the Consul General for Portugal atBombay
has applied for permission to import into, and export frorn, Bombay to ANNEXES TO COUNTER-MEMORIA E NO. 43) 3jx
Nagar Avely, two sporting .:uns (oneS.B.M.L. & the other D.R.M.L.),
brought toBombay from Gclaby a Port. Govt. servant en routeto Nagar
Avely. The guns are at present under detention for want of an import
license.
2. As the transmission oi: theçe arms from Goa to Nagar -4vely [lia
Bombay involves their importation into Br. India, 81as such impor-
tation is prohibited under rul7 of tht: Indian Arms Rules, 1909, I am
to request that the G. of 1. nîay be moved to accord sanction to the guns
being imported into Bombay.
3. 1 am also to request that in view of the notfn. in the Comm. &
Ind. Dept. No. 5385-C)\ dt.,the 12th May 1917 sanction may be
given to the export of the arms .from Bombay to Nagar AveIy.. It is
presumed that this notification constitutes the specific orders contem-
plated in Mr. Hardy's letter No. 11571,W-II DT. 23.10.16.
1have etc.,
intd. (illegible).10.
O.C.
Ag. Secy.to Govt.
intd. (illegiblIO/IO
Rev. Dep.
Submitted urith ref. to the oifice note d. 3-10-17. The papers may be seen
& returned u.0. toP.D.
intd. (illegible) zo/~o.
Un. Ref. No. 12875
26/1o/17
From
The Secretary to the Governmerit of India
in the Foreign and Political Department,
To
The Secretary to the Governmertt of Bombay,
Political Department.
Memorandum No. 185-GIS
Dated Siinla, the 21st November, 1917.
Your letter No. 7766, dated 12th October 1917-
Sanction is accorded to trançmission of two sporting guns in question
from Goa to Nagar Avely, via Bombay.
(Signed) J. B. Woou,
Secretary to the Government of India.
Attcsted.
(Signed) O. MARTIN,
Superintendent,
Foreign and Political Department.
C 10875 Pol.
Submitted.
The papers underlying G.L. No. 776ti dt. 12-10-17 towhich this is a
reply have been put up with- R.I. 1oj62 which has been referred U.O.352 ANNEXES TO COUNTER-MËMORIAL (E NO. 43)
to R.D. under No. 8916 dt. 20-11-17. May the Rev. Dept, be asked to
kindly expedite the return of those papers so as to enable P.D. to issue
the necessary Iicense for the transmission of theguns to Nagar AveIy.
intd.A.N. 26/11
U.O.R. No. 9099 to R.D.
dated 26-11-17.
Rev. Deptt.
Submittecl.
The papers referred to in the Poll. Deptt. office note dt.26th Novr.
1917 have been returned to that Deptt. under u.0.r. No. 14439 dt. 29th
Novr. 1917, These papers may he returned unofhcially to that Deptt.
in continuation of the former papers.
A.L.P. intd.L.W.G.
29111117
For. U.S.
Un. Ref. No. 14446
c III05 Pol1
Submitted.
The necessary license may now be granted.
The G. of 1,have communicated no orders on the point referred to them
in the concluding portion of para. 3 of Ourletter to them.
Drafts put up.
intd. (illegible)12
NO. 9277
POI.ITICAL DEPARTMENT
Bombay Castle, 1st Decr. 1917.
The undersigned presents compliments to the Commissioner of Police,
Bombay and is directed to forward herewith for delivery to The Consul
General for Portugal at Bombay a license No. 40, dated the 1st Decr.
1.17,~-nted under the Indian Arms Act.
2. Copies of the licensare also fonvarded herewith for delivery to the
Railway Company 8r for the Commrs. records.
3. The Commissioner ofPolice is requestedto ascertain the number of
packages of which the consignment will consist and to enter this infor-
mation in column 2 of the license to be delivered to the applicant,
reporting the number of packages to Government .
4. The Commr. is requested to issue an import license in favour of the
Consul Genl for Port, at Bombay in respect of the weapons.
intd. A.N.
O.C.
for Secretary to Government. ANNEXES TO COUNTER-MEMORIAL (E NO. 43) 353
No. 9275
' POL Eept.
B.C. 1-12-1917
To
The Consul Genl. for Portugal at Bombay.
Sir,
With reference to the ccirrespondence ending with G.L. No. 8746,
dated the 12th Nov. 1917 1 am directeri to infornyou tliata licerisfor
the export from Bombay tciNagar Avi:liof two sporting guns belonging
to Alr. Carlos Augusto Beleni Torrcs hasbeen forwarded, for delivery to
you, to the Commr. of P., Bombay, who has also beendirected to grant
you the necessary import 1ic:ense.
1 have etc.,
intd. (illcgiblrj~z
O.C.
Secy. to Govt. .n
63
The Consul General for Portugal at BoGCay
'1s
a
72
one package E g
2;r
(1S.B.M.L. sporting gun [
(2)D.M.B.L. sportingun 3.
8 I
(1one 5
(2one 3
$
NIL ! 2
= 5
!4
D
-- g
2 i
"=
NIL z 5
2
T
Bombay to Damaunby rail&thence ; zgf
to Nagar Avely by road s "5;
Persona1 use g a
2z.5
Nagar Avely 8g.
?
z
Mr, Carlos AugustBelemTorres. ,g.:t$
Nagar Avely %@:i
Frorn th1stDecembertothe 7th of
March 19x8 I
(FP'ON a) TVIXON~N-X~.LN~O~ OL saxas~v $SI ANNEXES TO COUNTER-MEMORlAL (E NO. 43)
355
1. This License is granted subject to al1the provisions of the Indian
Arms Act, 1878 (XEof 1878), and of the Indian Arms Rules, 1909.
s. The articles shallnot be conveyell by any route other than that
specifiedinColu1n117;and bulkshall not he broken,norshall the consign-
ment be stopped, before the;~rticlec;reai:h the place of destination.
3. ,4n sccount of the contents of each package shall be legibIy written
thereon :and urhere the articles are conveyed by raileach package shall
be rnarked with the word or expression "Arms", "Ammunition" or
"Military Stores" as the case may be, so as to be readily recognizable
by the Railway aut horities.
POLITIC.4L DEP-qRTMENT :
Bombay CastIe, 1stDecr. 1917.
Copy forwarded to Cow~nv.of C?tstoms,Salt R'Excise, Bombay,
Dist. Magistratc, Surat,
for information with rcference toG.Ti. No. 682 dt. the 20-1-1896,
O.C.
intd. A.K.
3a/r1117
for Secretary to Government.356 ANNEXES TO COUNTER-MEXIORIAL (E NO. 44)
Annex E. No. 44
PORTUGUES ERDER-IN-COUNCIL NO.4590 ,ATED 26~~UECEMBER 1947 '
Gouernorate Gcnerai )'
OrdinanceNo. 4,590
26-12-1947.
As it is convenient to introduce regulations to govern 'the entry of
Portuguese nationals and foreigners in the territory of this State;'
' After consulting the Permanent Session of the Government C,ouncil;
The Acting Governor Gencral of Portuguese fndia, undcr the powers
vested in him by Art. 31 of the Colonial Act, and by No. 12 of the Art.37
of the Administrative Charter of the Portuguese Administrative Charter
of the Colonial Empire, orders:
Art. g. The systern of free transit, to the natives of neighbouring
India, in the territory of this State shall be maintained; liowever, the
authorities, entrusted with the work of supervising the emigration in
this State, and at places, inclicatedin this Ordinancc for entry of emi-
grants, can demand any document or declaration of identity whenever
they deem it necessary.
Art. IO. The entry of Portuguese national5 in the territory of this
State is not subject to any condition or prior authorization, provided
they are:
I.Natives of Portugu-se India, their wives, and children;
2. Government employees, or working under contract for the Govern-
ment, Administrative bodies or Corporatioii, and Autonomous Services,
when carrying the cornpetent transit permit (Guia), as well as members
of their families, and servants who have been mentioned i~ithe snid
permit; and
3. Settlers,carrying permits (Guias), issuedby the Minister of Colonies.
Art.12. The foreigners autliorised to reside in the territory of tl-iis
State are obliged to call personally on the administrative or Police
authority of the area where tliey reside, within 5 tlays from the date
of their entry into Portuguese India. They must do likexviseevery time
thoy cliange their residcnce, and call on the same authorities in the area
of their new place of rcsidence.
Art.13. The residence of foreigners in the territory of this Stnte for
a period exceeding thrce montlls can only be authorized agaiiist a
certificate of temporary rerideiice, as pcr form I, attached to tliis
Ortiinance, of which it forms a part. Such certificates are issuet1hy the
compctent administrative authority under the tcrms of the yreceecling
Article.
Only fiara. The certificate of temporary residence will be issued to
the interested parties on payment of Rs. 151-in stamps. Such payment
sliall have to be paid after every year, also in stanips, from the date
of the issue of the certificnte.
Art.Id. The certificate of temporary residence referrcd tu in the
preceeding Art. çhall be valid for a period of 5 years frcjm the date of
the issue,and on termination of this period,in case the foreigner applies
Translationfrom thePortu,ywesstert. ANNEXES TO COUNTER-MEMORIAL (E NO. 45) 357
for and is granted permanent residence in the territory of this St:ate, a
certificate of permanent residence willbe isseud to him, as per form 2,
attached to this Ordinance, on which will be levied, every year, .half
the amount mentioned in the Art. 13. It will be levied in the same
manner, as indicated in that Article.
Art.15. The residence in the territory of this State of nationais of
neighbouring India is not siibject to the provisions of the Articles 12,
13and 14,but they should be required i:cal personally on the adminis-
trative and police ailthorities in the area lvhere they reside, within 8
days from the date of thcir entry in Portuguese India, when their stay
in this territory is for a period euceecling this period.
Art. 16.Perçons entering or staying in the territory of this State in
contravention of aRy of the provisions of this Ordinance shall be punished
with imprisonment up to one month, and a fine from 50 to 500 rupees,
followed by expulsion. False docunients or declarations referred to in
the concludingportion of Art. g,will be ~iunishable underthe Penal Code.
ORDEK-IN-COIIN NCO.4,03:!
Whereas it is neccssary tu revise the Order-In-Council No. 4,590 of
the 26th December 1947;
After consulting the permanent section of the Government Council,
The Governor General of Portuguese India, in the use of the powers
conferred upon him by the Art. 31 of t.he Colonial Act, and by No. 12,
of Art. 37, of the Organic Charter of the Portuguese Colonial Empire,
determines:
.4rt. I.- The entry into and exit from the territory of Portilguese
lndia of Portuguese nationals and foreigners is only permitted through
the frontier posts mentionerl beloiv, or througk such ysts which shall
bc subsequently determined by Govt. order:
District of Goa: Ports of Mormugao and Pangim-Quiranpanim-
Neibaga-Doromarogo-Molem-Colle~n-Pol and mMorgugao Aero-
drome.
District of Daman: Port of Daman, Dabel, Great Daman, Silvassa,
Naroli, and Canoel.
District of Diu: Port of Iliu,Brancavnra, and Gogola.
Only Para: The entry and exit of Portuguese and Indian nationaIs is
also permitted through Ciistoms posts situated at points not mentioned
in the present Art., whenever they carry goods or are bound for frontier
regions in order to stay for not more than 24 hours.
Art. 9.-The regime of free transit in tkis territory ta nationals of
neighbouring India shallcontinue; however the authority supervising
l Translationfrorn the Portuguese tegivenin the "Boletim Official", 11,
Series1; datedthe 25th March 1948. ANKEXES TO COUNTER-RIEhIORIAL (E IiO. 45)
358
emigrntion at places indicated in this enactment may, whenever required,
demand any document or declaration of identification.
Art. IO-The Portugueje nationals entering this territory are not
suhject to any conditions or prior authorization provided:
1.-They are born in Portuguese India, or are wives andchildren of
such persons.
2.-They are Government employees or perçons under contract to
Govemment, Administrative Bodies and Autonomous Services, and
members of their families and servants, when they hold valid travelling
documents (Guias).
3.-They are colonists holding a card from the Ministry of Colonies.
Art. 12.-Foreigners authorized to stay in this territory are subject
to the necessity of presenting themselves before the Police and Adminis-
trative authorities of the area in which they reside, within 24 hours
from the date of their entry into this territory, and every time they
change their residence they shall be required to present themseives in
the like manner before the same authorities in the area of their new
residence.
Para 1.-Foreigners entering this territory with any other aim than
the one referred to in this Art., shall be bound to preserit themselves
before the District Police autiiorities in the area for which they are
bound within 24 hours of their arrival, and also whet-iever they have to
go from one district to another, in the course of their stay, for more
than 48 hours.
Para 2.-As a rule, the transit through or temporary stay will be
authorized for 15 days, which period can he extended on application to
and sanction from the Government.
Art. 13.-The residence of foreigners in this territory, for a period
exceeding 3months, can oiily be autorised on a certificate of temporary
residence, as per formI, annexed to this enactment, which forms integral
part of the same, issued by the competent administrative authority in
accordance with the terms of ille previous Art. The Police Commissariat
shall be consulted regarding the authorization and tlie yearly renewal
of the Certificate,
Only Para.-For the certificate of ternporary residence the applicant
shall be charged Rs. 151- stamp tax, upon issue of the same, and a
similar amount for every yearly renewal.
Art. 14.-The certificate of temporary residence referred to in the
preceding Art. shail be vaiid for a period of 5 years, from the date of
issue, and at the end of that period in case a person's application for
permanent residence in this State has been granted, a Certificate of
Permanent Residence shail be issued to him, as per form z, annexed to
this enactment, for which he shall bc charged the sum indicated in the
-4rt.13 which he shallpay also in the rnanner prescribed in the sameArt.
Information shall be soiicited from the Police Commissariat for the
purpose of issue of the certificate of permanent residence.
Art. 15.-The residence in this territory of the nationals of neigh-
bouring India is not subject to the provisions of the Arts.12,13 and 14,but itis compulçory for them to present themselveç before the police
authorities in the area of their residence, within24 hours of their eritering
Portuguese India, except in case fhey have been exempted by the super-
vising authority .
Art, 16.-Persons entering or staying in this territoryin contravention
of the provisions of this enxtment shall be liable to iniprisonment up
to I month, and a fine frorn Rs. 501- to 5001- followcd by expulsion.
Faise documents or declarati.ons, referred to in Art. 9, shall be punishahle
under the tems of the Penal Code. Annex E. No. 46
Urge-t.
No. AG147-491(2)
Consulate for India.
Goa, 18th January 1949.
To
The Chief of Cabinet,
Goa.
Sir,
Please refer to pour letter No. 750-G, dated 21.12.48. 1 shall deal
with this question at greater length a little later but in the meantime
kindly let me know as early as possible whether it is com~ulsory forail
nationals ofthe Indian Union who corne to the Portuguese Possessions,
particularly to Goa,to report themselves to the Police of their destination.
Please also let me knoiv whethcr this regulation is applicable also to
officials of the Government ofIndia who are doing theirnormal duties in
Goa but who have often to go in and out of Goa. It imy conviction that
such a regulation isnot applicable to officialsof the Government of
India. However, a confirmation from you wi1l be helpful. An early
reply will oblige.
With the assurance of my highest esteem,
Yours faithfully,
(Signeci)P. N. DRIVER,
Consul for lndia
in the Portuguese Possessions in India.
Translation.
No. 821Gdated 20.1.1949,
With reference to your letter No, AG/47-49/2 dated 18.1.49, 1 have
the honour to request kindly to let me know the rank and category of
the Government of India officials who are coming here and what are
the normal duties they have to cornply with over herein order to inform
you on the subject in question.
No. AG147-49-(3)
Consulate for India,
Goa, zznd January 1949.
The Chief of Cabinet,
Goa.
Sir,
With reference to your letter No. 82-G, dated 20th January 1945).
I have the honour to state that the officers to whom I refer are those
who are doing their normal duties in Goa on behalf of the Government
of India. They include several officers such as the Chief Customs Officer AXNEXES TO COUNTER-MljMORI.4L (E NO. 46)
361
at Rformugao and other st;iff of the Central Excise Department. My
query refers also to al1other nationals of the Indian Union who niay be
coming to Goa and not staying in a hotel.
With the assurance of my highest esteem,
Yours faithfully,
(Signed) Y. N. DRIVER.
Consul for India
in the Poituguese Possessions iii India.
Translation
No. II~/G dated 1.2.1949,
With reference to your letters Nos. A.G/47-4912and AG/47-4913,dated
18th and ~2nd January, respectively, 1:have the honour to inform you
that the law in force does not exempt the exceptions to which you refer.
2. Nevertheless special attention and due facilities have been given
when dealing with people of high category and when previous notice is
given to this State of their srrival.
3. As you know that when officials of this State go to the Indian
Union, even those of high category, they fulfil the police replations
in force, thus itisyour duty to respect the law in force in the country,
where they are. --
Consulate General for India,
Goa.
NO. S-ICG/24/50.
2nd April 1351.
To
The Chief of Cabinet, . :
Goa. . ,
Sir,
1 have the honour to refer to para rgof the Order-in-Council No. 4632,
published in Boletim Oficial No. Ir, Series1,dated the 25th March 1948,
and to enquire a clarification othe term "except in case they have been
exempted by the supervising authority ".
1request also that 1 may be inforrned of the individuals or categories
of perçons so exempt.
Please accept, Sir, the assurances of my high consideration.
(Signedj V. H. COELHO
Consul General forTndia,
Goa.Translation of the letterNo. 41z/G, dated the 1st hlay 1951, from the
Chief of Cabinet, Goa
With reference to your letter No. S-ICG/z4/5o, dated the 2nd instant
[sic] 1have the honour to inform you that the regirne of exception to be
granted by the supervising authorities, as provided in the Art. 15 of
the Ordinance (Portaria) No. 4,632, dated the 25th March 1948,amended
by only Art. of the Ordinance No. 5,046, dated the 23rd hlarch 1950,
can only take place in respect of individualçborn inthe Indian Union,
who are known to the Police, for having already been in the country
before, and if it is known where they are going to reside, and what is
the purpose of their visit.
Thus, in order to grant such an exception there is no need to consider
the social standing or the duties which the individuals may perchance
discharge in the Indian Union.
Nevertheless the Police-the supervising authority-has included in
this criterion of exception the Indian Union nationals holding high
posts, exempting them from this and other forrnalities, provided it is
known where th;y have lodged, and provided it (the police) has in some
way established contact with them, exclusively with a view to extend
them facilities,even though these are not asked forThe same procedure
has been adopted inrespect ofyour guests, when a mere communication
from you, to this office, suffices.
Please accept, Sir, etc.
Consulate General for India, Goa.
h'o. S-ICG/z4/5o.
5th May 1951.
The Conçulate General presents its compliments to the Governorate
General of Portuguese-India, Goa, and has the honour to acknowledge
its letter No41z/G, dated the 1st May 1951 on the subject of exemption
to be granted by the Supervising authorities as provided for in Art. 15
of the Order-in-Council No. 4632, dated the 25th March 1948. The
Consulate General seeks further elucidation on the following points:-
(a) whether perçons, who have once fulfilled the formality of
registering themselves at Police Stations, are exempt from such
formalities on the occasions of subsequent visits to Goa;
(b) the names of persons or categories of persons included in the
term "Indians holding high posts".
In this connection, the Consulate General would observe that no
acknowledgement has been received to its letters No. X11/11-903,
dated the 31st March 1951 and No. XIIIII-1319, dated the 26th April
1951.
The Consulate General takes this opportunity to renew the assurances
of its high consideration.
The Governorate General
of Portuguese-India,
Goa. ANNEXES TO COURTER-R1EMORIAL (E NO. 46) 363
Translatiori of the letter No. 4g7/G, Proc. No. F/4, dated the 21:jt May,
1951, from the Chief of Cabinet, Goa
With reference to your letter No. S-ICG/24/5o, dated the 5th Instant,
Ihave the lionour to inform you that the formality of calling on the
Police is necessary every time the persons come to Goa.
The Police clecides about the suita.bleness of exempting persons of
liigh standing from the formalities, in respect of each separate case.
As I informed you in my letter No. 41z/G, as regards your guests,
, n simple communication is sufficient, like the ones made in your letters
Nos. XI1/11/gz3, dated the and April, and XIIIII-1319, dated tlie 26th
April, which in due course were passetl on to the competent authorities.
Please accept, Sir, etc.
Consulate Generxl for India,
Goa
No. S-ICG/z4/49.
25th May, 1951.
The Consulate Gei-ieral for India presei-its its complimeiits to the
Governorate General of Portuguese-India, Goa, and has the honour
to acknowledge the Governorate Gent:ral's note No. 497/G, dated the
21st May 1950, regarding the prescriptions under Art. Ij of the Order-
in-Council No. 4632, dated t.he 25th March, 1948.The Consulate General
wishes to observe that if every Indian visitor to Goa is required to
inforrn the local police about his arriva1 into Goa in order that the
PoIice may consider whether exemption should be granted from the
formalities, then the provision of the articles has no special meaning,
in other words, the exceptions provided for in the article in question
are without sipiificance.
The Consulate General talres this opportunity to renew the assurances
of its high consideration.
The Governorate Gencral
of Portuguese-Inclia,
Goa. '
Translation of the lettei- No. 553/C;,dated the 26th June 1952,
from the Chief of Cabinet, Goa
With reference to tlie concluding portion ofyour letter No. S-ICGIII~I
154, dated the 2.6.195 2 ,m directed by H. E. the Governor General
to inform that with a view to extend a.1possible facilitieto the lndian
Union nationals, the time limit for tht:ir registration iii the Police was
estended from 24 to 72 hoiirs.
The present system has not put the visitors to any great difficulties,
as actual practice has shown.
Afany persons who come cmvisit or tiusiness do not stay for 72 hourç,
owing to whicli fact they ha.ve not to 1-egisterthemselves and for those
who come for staying longzr periods such a simple forrnaiity cannot364 ANNEXES TO COUNTER-MEMORIAL (E NO. 46)
be considered as constituting great difficulty. There is no intention of
changing the system in force.
It must be noted that the Portuguese who proceed from Goa to the
Indian Union-when they are not Indians-are required to cal1 at the
Police within 24 hours, and no special treatment was even meted out.
As regards the other subjects referred to in yourletter No.S-ICG/r 151
154, replies shall be fonvardedin due course.
Please accept,Sir,etc.
No. S-ICG(Z~/ZII.
1st JuIy 1952.
E'our Excellency,
1 am writing to acknowledge letter No. 553/G ,ated the 26th June
1952,from the Chief of Cabinet, Goa, in regard to the registration by
Indians entering Goa within a period of 72 hours. Despite the indication
that there is no intention of changing the system in force, Itrust Your
Excellency will keep the matter in mind as a requestspecially conveyed
by us.
Please accept,I'our Excellency, the assurances ofmy highest consider-
ation.
(SignedlV. H. COELHO
Consul General of India,
Goa.
His Excellency
Corn. Fernando de Quintanilha
e Mendonca Dias,
Governor General,
Goa.
Government of India
Ministry of External Affairs
No. D. zSp-Eur. 1/52.
New Delhi, 16th Aupst, 1952.
The Ministry of External Affairs present their compliments to the
Legation of Portugal in India and have the honour to say that the
Government of India are much concerned at the action of the Portuguese
Government in making Decree No. 28 :228, promulgated by the Fortu-
guese Ministry of Colonies, applicable to the Portuguese territories
to India, by Ministerial Legislative Act No. 16 (as published in tlie
Boletim officia1No. 19, serial 1, dated the 8th May, 1952).
2. The Government of India fear that the application of this Decree
will result inunfair discrimination againçt Indian nationals who have
çubstantial business and property interestç in the Portuguese Possessions
in India. This is al1 the more regrettable when it is realised that the
Government of India Iiave spared no pains to be of theutmost assistance
to the people and Government of this territory and that-Indian enter-
prise lias played no smail part in building up its prosperity. Recently Zndian industrialists ylayecl an imporl:ant role in developing its minera1
wealth.
From time immemorial, indians have enjoyed the privilege of free
residence there. Even the Railway and Postal administrations have
been common.
2. Similarly, for al1 these years the people of this territory have
enjoyed the same rights and privileges in India as Indians then~selves.
In the Indian administration and Armed Services they have but the
same status as fndian nationals. No restrictions against their holding
property or engaging in bu:;iness in India have been imposed in contrast
with the restrictions now placed on Indians by this decree, though it
is well knoum that there are fewer Indian natiorials in Portuguese lndia
than Portuguese Indian subjects in Iiidia:
4. In view of what is siiated above the Government of India hope
that the Governrnent of Portugal wiIl take early steps to canncel the ,
application of fhis decree to the Portiiguese Possessions in India.
5. This Ministry take the opportunity torenew the assurance of their
highest consideration.
(Seal and date)
To
The Legation of Portugal in India,
New Delhi. --
No. D. 5895. Eur. 1/52
Government of India,
hlinistry of Extemal Affairs.
New Delhi, the 29th December, :r952.
The Blinistry of Externa1 Affairs present their compliments to the
Legation of Portugal in Iniiiaand have the honour to invite th: Lega-
tion's attention to this Ministry's Notes No. D. 2872-EUT. 1/52 and
D. 4213A-Eur. 1/52,dated the 16th Augst, 19j2 and 16tliOctober, 1952,
respectively, on the subject of certain discriminatory decrees against
Indian citizens promuIgatt:d in the Portuguese Possessions in India
within the past few years.
2. The Government of I~idia are now canstrained to protest strorigly
against the provisions of >.et another Law prornulgated by the Portu-
guese Government, namely, Decree-Law, No. 38:66z, puMished in thc
Boletim Officia1 No. II, 1 Series of 13th Marcfi, 1952, which ninkesit
obligatory on foreigners in the Portuguese Possessions iri India to be in
posscssion of Identity Certificates. Thr: Government of India had hoped
thst the above Decree was not applicable to Indian nationals living in
these territories. However, the Portu!:ucse Ministry of Foreign Affairs
in their Note Ko. 7, (Proc.:,73,1)dated the 4th October, 1952, addressed
to the Legation of India in Lisbon, have stated that the expression
'non-natives' uçed in Article 2 of the said Decree-Law isalso applicable
to Indian citizens resident in Goa in the same manner as it is appIicable
to Europeans or to individuals of any other race. ANNEXES TO COUNTER-MEMORIAL (E NO. 47)
366
3. The Government of India are much concerned ai this interpreta-
tion of the new legislation, asitcuts at the very root of the rights and
privileges of Indian nationals resident in Goa, Daman and Diu, right-
fully enjoyed hy them and sanctioned by tradition. The injustice of the
new Law içevident, in view of the fact that the inhabitants of the
Portuguese Possessions in India, who reside in the Indian Union, are
not subjected to any such discrimination. The recent Decree promul-
gated by the Portuguese Government iscleariy contrary to their declared
policy of "traditional friendship" to and their spirit of "trustful co-
operation" with the people of India, who are, in no way different or
distinguishable in race, language, culture or creed from the people of
Goa, Daman and Diu.
4. In view of wiiat is stated above, the Governrnent of India hope
that the Gove'rnment of Portugal would find it possible to review their
interpretation of the expression "non-native" used in Article 2of the
Decree-Law No. 38 :662,of the 29th February, 1952,and declare that the
Indian citizens resident in Goa, Daman and Diu are not affected by
this Law.
5. The Ministry of External Affairs take this opportunity to renew
to the Legation of Portugal the assurances of their highest consideration.
To
The Legation of Portugal
in India,
New Delhi.
Annex E. No. 47
No. 8/48(2)-835.
Consulate for India,
Goa, 29th March, 1949.
The Chief of Cabinet,
Goa.
Sfdbjec: Grant of travel facilitieç for India to Portuguese nation-
al5 (not domiciled in the Portuguese Possessions).
Sir,
1 have the honour to refer to the correspondence resting with your
letter No. 760jG dated the 23.1z.rg qn8the above subject.i am directed
to inform you that perçons who are domiciled in the Portuguese Posses-
sions in India are already exempt from the requirements of Passports
and visas under the Indian Passport Rules, 1921, and that there is no
ground for believing that any difficulties or new restrictions are intro-
duced in respect of Portuguese nationals travelling to or through India.
It is only Portuguese nationals (and other foreigners) wlio are not domiciled in the Portugues~: Possessions in India who must hoId a valid
national passport and a visa for IndiaIt might be of interest toyoiito
know tliat the same hold~;true of liersons domiciled in the French
Establishments in India.My letter 370.8/48(2)dated the 14th December,
1948, onIy reiterated the iilstructions in accordance with the existing
law and did not introduce ;anynew p~inciples.
2. The Government of India will lie glad to examine the question
whether the "Guias" may be accepteil as a valid travel document, in
lieu of passports. If you send me;Lspecimen of a "Guia" together with
a statement as to the conditions and circumstances goveyning the issue
of such a document in lieu of passports 1 shall forward them for the
consideration of the Governnient of India.
3. ItwiIl beclear from the above that those who are domiciled in the
Portuguese Possessions in lndia can enter India without passports or
visas and the possessionsofvalid naticinal passportswith the necessary
visas for India thereon are insisted on onIy in the case of foreigners,
whether Governnient servants or missionaries, wha are not domiciled
in tlie Portuguese Possessions in India. I might also add that this
Consulatc charges no fees foi-granof entry or transit visas to offic:ialsof
your Government proceeding on duty.
With the assurance of mg highest esteem,
Yours faithfrilly,
(Sig~.edj P. N. DRIVER,
Consul for India, Goa.
LETTER FROM THE CHIEF OF CABINICG T, A,TO THE CONSUL FOR
INDIA,GOA, DtiTED THE X2TH APRIL,1949
Translation of letter No. 3jGlG dated the 12th April 1949 from the
Chief of Cabinet, Goa
"Witli reference to your liittNo. 8/48(z)-835dated the 29th March,
19491 , am requested by Nis Excellency to send you, in cornplianci?with
your request, a transit permit form (Guia) which the Head Office ofthe
Civil Administration Services, Goa, issues to public servants, their
wives and rnissionaries goin!: abroad.
2. 1 must inform you that al1 public servants on active servicein
Portuguese India, as well as those who corne to Portupese India to
take up public posts, are Portuguese who necessarily have legal resi-
dence in Portuguese India.
3. The transit permits issued to thein, as 1 have had the honour to
inform you in para 2 ofmy Ietter No. 7EoIGdated ~3.12.1g~+8-offer pre-
cisely the same guarantees as passports, in view of the fact that al1
public servants on their appointment, have a complete set of documents
as are recluired for the issuof a Passport. The same is the case with
their families and the missionaries who travel at the Government cost. -4XSEXES TO COUNTER-MEMORIAL (E NO. 49)
368
4. I must also elucidate you on the matter as referred to in para 3
of your above mentioned letter. The public servants on service in
Portuguese India are al1 Portuguese with legal domicile in Portuguese
india, and as you are aware, there is no distinction whatever between
a native of this couritry and a Portuguese born in Portugal, afar as the
nationality is concerned, becauseal1are Portuguese having equal rights.
5. In view of the facilities that have always been given to the Portu-
guese residingin this country-whether from Portugal or natives of
this country-to proceed to India, this Government also, as you are
aware, has been extending the same facilities to proceed to Portuguese
India to foreigners who are Indian Union nationals, seeing that the
latter are given certain privileges and exemptions, orrailler meted out
a treatment different Eromthat given to other foreigners.
6. In the circiirnstances this Government hopes that the Indian
Government will give due consideration to what has been adopted
above and will maintain the system that has been adopted up to this
day, because it isthe desire of thisGovernrnent also not to alter the
existing system which governs the entry of the Indian Union nationals
in Portupeçe India.
With the assurance of my highest estèem, ..."
Annex E. No.49
LETTER FROM THE CONSUL GENERA LOR INDIA,GOA, TO THE CHIEF
OF C-\BINETG , OA,DATED I7TH JANUARY, 1950
No. VIIII6-88 17th January 1950.
To
The Chief of Cabinet, ,
Goa.
Sir,
1have the honour to invite yoirr attention to corrcspondence resting
with your letter No.356/G, dated rzth April 1g4g.1 am directed hy my
Government to inform the Portuguese India authorities that :-
(1) The Governrnent of India are prepared to accept the "Guia"
as a valid travel document in lieuof a passport.
(2)The Governrnent of India are unable to accept the contention of
the Portiigucse Government in Goa that al1Portuguese oficials, whether
born in Portugal or eIsewhere, acquire domicile in Portuguese India so
long as they remain in service there, In accordance with general inter-
national practice in this respect the Government of India are prepared
to regard only those Fersons as domiciled in Portuguese India who are
resident in Portuguese-India and who intend to make that country
their permanent home. The rnere fact that an officia1is servinginGoa
does not prove that it is or will be his permanent home
(3)Under ruIe 5(r) (g) of the Indian Passport Rules, 1921. perçons
domiciled in Portuguese-India do not require either passports or visas ANNEXES TO COUNTER-MEMORIAL (E NO. 50) 369
for travel to .IndiaThe Gcwemment of India propose to continue this
exemption in respect of al1perçons doniiciled in Goa. Portuguese officials
and others, who do not fulfil the coriditions that the Governrnent of
India consider requisite for domicile in Goa, must have their "Guias"
or -ass-orts duly visaed for India.
Please accept, Sir, the assurancesofmy high consideration.
(Signadl A. N. MEHTA.
Consul GeneraI for India,
,- Goa.
Annex E.No. 50
NOTE FROM THE CONSIJLATG EEN.ERA L FINDIA,GOA, TO THE
GOVERNO GRENERL~L G,OA, DATED IST OCTOBE1 R9,53
Consulate GenerztlofIndia,
Goa.
No. VIII17-8115, ' Dated, 1st October, 1953.
The Consul General of India presents his compliments to His Excel-
lency the Governo'r General, Goa, and has the honour to state as follows:
It has come to the notice clfthe Goveinment of India that on a number
of occasions Portuguese European officiaitravelling between the Por-
tuguese territories in India have tra~isitted Indian teriitory without
obtaining visas either from the Consulate General or other competent
Indian authority in accordance with the requirements of the Indian
Passport Act. Instances have not been Iacking when Portuguese Euro-
pean officialhaving gone toDaman from Goa on transivisas have again
re-entered Indian territory, ancl subsequently returned to Daman, with-
out obtaining entry visas. The Consul General is accordingly required
by the Government of India to inforrn his Excellency that this is a
serious contravention of the Indian Passport Act.
It has further come to the notice ofthe Government of India that in
many cases certain Portuguese Europenn officials, having entered India
either on a transit .visa; or on an entiy visa obtainedfor purposes of
spending their leave in the country, have indulged in various officiai
activities not permitted to them by virtue of the terms under which
these visas' are granted.Tht:Consul General is directed to infonn His
Excellency that a transit visa in particularis specifically intended to
facilitate the travel of the individua1.concemed to his destination in
direct transit.Ifofficiawork has to'be undertaken in India, an entry
visa should be asked for spet:ifically for this purpose.
In view of the above mentioned infringements ofthe Indian Passport
Act, the Consul General is directed to request Bis ExcelIency to take
necessary measures to avoid recurrence of such caseswhich, if continued,
would compel the Governrneiit of India to take action against the defaul-
ters according to Iaw.
25 ANNEXES TO COUNTER-MEMORIAL (E NOS. 51-52)
370
The Consul General takes this opportunity to renew the assurances
of his highest consideration.
His Excellency
the Governor General,
Goa.
Annex E.No.51
Consulate GeneralofZndia,
Goa.
No. VIII/7-10088. 5th December, 1953.
The Consul Generaof India presents his compliments to His Excellen-
cy the Governor General, Goa and has the honour to state that it has
been brought to his notice during his recent tour to Daman and Nagar
Aveli thatthe terms of notNo.VII1/7-8115,dated the 1st October 1953,
regarding the possession of valid visas byal1Portuguese European
oficials stationed at Daman and Nagar Aveli transitting Indian territory
are not being observed. Numerous instances of contravention of these
regulations after the date of the above note have been reported. The
Consul General has the honour accordingly to request that immediate
instructions be issued to the effect that the sequirements of our above
note are strictly observed in future by Portuguese European officials as
wellas by the rnembers of their families.
The Consul General takes this opportunity to renew the assurances
of his bighest consideration.
His Excellency,
the Governor General,
Goa.
Annex E. No. 52
LETTER FROM THE CHIEF OF CABINET ,OA ,OCONSUL GENERAL
FOR INDIAG, OA ,ATED 2IST DECEMBE1 R9,53
Translation of the letter No. 307, P313,I, dated the z~st Deceinber
1953 rom the Chief of CabineGoa.
CONFIDENTIAL
Refeyence:LetteNo. VIIIj7-10088, of 5-XII-53
1 am directed byH. E. the Governor Generalto inform you that the
ban whereby the European officials cannot transit through the Indian
Union temtory between Daman and Nagar-Aveli, without visas from
the Consulate General of India in Goa, constitutes a change to the ANNEXES TO COUNTER-MEMORIAL (E NoS. 53-55) 371
statusquo anta, owing to wliich fact that matter has been submitted to
my Government.
Meanwhile, and in accordance with the verbal communication made
by you latelyto the Acting Governor of Daman, duly clarified by a
member of the staffof the Consulate, "guias" are being issued to the
European officiais on duty in the Daman district, as well as to their
families, for the purpose of being visaed by you, with validity foraperiod
of one year.
Please accept, Sir, etc.
llnnexE.No. 53
[See Annex 38 i!Memorial, Vol. 1fip.72-73.]
finnex E. No. 54
NOTE FROM THE LEGATIO N~FPORTUGAL, NEW DELHI, TO THEMINISTRY
OF EXTERNA A.FFAIRS,GOVERNME ONFINDIA,
DATED IITH FEBKUAR1 Y954
[See Annex 40 ioMemorial, Vol. 1pfi.77-79.]
P~nnexE. No. 55
GOVERNMENT OF INDIA,
MINISTR'Y OF HOME AFFAIRS
New Delhi (z)t,e 10th April, 1954.
:1. NOTiFICATION
In exeicisof the powers conferreby section 3 of the Indian passport
Act, 1920 (XXXIV of 1920),the Central Government hereby directs
that the following further amendments shall be made in the Indian
Passport Rules 19.50,namel:-
In sub rule(1)ofrule4 of the said Rules-
(1)for clause (c), the following clauses shall be substitute:- namely
"(c) Persons domiciled in India proceeding from the Portuguese
Establishments inIndia;
"(cc) Persons domicilein India, proceeding from any of the French
Establishments in India other than those proceeding from Pondicherry
and Karaikal on or after the 19th April, 1954."372 ANNEXES TO COUNTER-hlEhIORI.4L (E'NOS. 56-57)
(ii) for clau(d, the followingclauses shabe substituted, narnely :-
"(d) Persons domiciled in any finch Establishment'in India pro-
ceeding from anysuch'establishment other than those'proceeding from
Pondicherry and Karaikal on or after the19th April,1'954;
(dd) Perçons dom'iciled in any Portuguese establiçhrhent in India
other than personsin the Service of the Government of any such establish-
ment or the member of the family of any such person proceeding from
any such establishment on or after the1stApril 1954."
(Sign~d) FATEH SINGH
Deputy Secretary to the Government of India.
Annex E. No. $5
NOTE FROM THE NIYISTRY OF EXTERNAL AFFAIRS, NEW DELHI, TO THE
LEGATION OF PORTUGAL
[SeeAnnex C. No. 86toPrel-minavyObjection,Vol. 1,$p. 559-560.1
Annex E. No. 57
Vote No. 109 dated 31st July, 195~ from the 1,egation of Portugal
to the Ministry of External Affairs, Government of India, New Delhi.
. .
The Legation of Portugal yresent their compliments to the Ministry
of External Affairs and have the honourtacommunicatc that ail Indian
nationals who wish, to.enter Portuguese territory at any place of tlie
frontier havc to :produce passports or equivalent documenduly visaed
by Portuguese Consular authorities. This procedure will be enforced
from the 1st August, Igj4. .
The above is comrnunicated to the Ministry owing to the fact that the
Indian Consul General at Goa, when informed of this, in clear contra-
diction with his previous communications to His Excellency the Gover-
nnr General regarding the need of Indian visas, pretended that the
matter was beyond his jurisdiction.
The Legation of Portugal avail themselves of this opportunity to
reneu to the Ministry of External Affairs, the assurances of their highest
consideration. . . ' .4nnex E.No. 58
COPY IN TRANSLATION OF THE CIRCULA KATED THE 7TH AUGUST 1954,
FROM THE GOA POI.IC:ECOMMISSARIAT
.On Republic's Service ...
Information Serx~ice....
PORTUGUESE IKDIA POLICE-COMMAND--
NO.SI. 6jgjTE-Circular ........................
To Messrs. Minerio Limitada-City ofGoa. .............
Notice is hereby given to al1 mine concessionaires and owners tothe
effect that within24hours thcy shoiild arrange for the departure from
our territory of al1 the personnel born in India which is not autfiorized
to reside permanentlyor teinporarily in our territory.
Whoever does not fulfil what is laid down in this Circular shal! be
detained for disobedience t:o aut1,iority.
To the Good of the h'ation,
The Command in Goa, dated the 7th Aug. 1954.
Thi:Commissioner,
Fernando DA COSTA REVEZ ROMBA Cavalry Capt.
flnnex E. No. 59
PRESSNOTE FROM THE R~INISTR OF EXTEKNAL AFFAIRÇ,GOVEI~XME'IT
OF INDIA, DATED 4~11AUGUST1 , 954
GOVERNMENT OF INDIA
PRESS IIJFORMATION BUREAU
PRESS NOTE
The Governnient of India have noted the decision of the Portuguese
Government that with effect from August I,1954, Indians entering
Goa must be in possession of a passport or an equivalent document and
have a visa from a Portuguese ConsuIar authority. This was announced
on the goth of July and the Government of India informed in an official
note on the 31st. The only !;O-calledconcession the Portuguese Govern-
ment made was that people crossing the Portuguese frontierwithout
passports on the1st and2nd of August would not be dealt with h:irshly.
In brief, the Portuguese Gcivernment have,without any advance war-
ning, brought the movement of Zndians into Goa to a standstill tliereby
causing extreme hardship to thousands of Indians both inside Goa as
well as in the rest of India. This lofconsideration on the part ofthe
Portuguese authorities for the welfaciIndians and Goans is in accord
with the traditional pattern of their policies.
The Government of lndia have decicted to introduce a permit scheme
in regard toentry of persons from the Portuguesesettlements iIndia.
This measure is dictated primarilyby the need to stop the large-scale ANNEXES TO COUNTER-hIEIiIORIAL (E NO. 59)
374
smuggling that has been going on between the Portuguese settlements
and India.The permit scheme will be put into operation shortly, the
delay being due to the desire on the part of the Government of India
not to stop cornpletelythemovement from these settlements'into India
thereby causing hardship to innocent people. The date of the intro-
duction of the scheme will be announced in due course.
Ministry of ExternalAfjairs.
New Delhi, August 4, 1954. Annex E.No. 60
POLITICAL AND SERVICES DEPARTMENT
No. 2768/46-17504-A.
Bombay Castle, 13th April 1949.
From
Shri M.D. Bhat, Esquire, I.C.S.
Chief Secretary to the Governnient of Bombay,
Political and Services Department.
'r0
The Consul for Portveal at Bombay
Sir,
I am directed to acknowledge the receipt of your letter 379/Proc
r3-D/a/4g1 dated the 8th P~pril1949 ,equesting permission for the free
transit for two med soldiers who willbe accompanyng the Shroff of
Nagar-AveIy to Daman croasingthe Indian territory and to state that the
necessary instructions have been issued to the offices concerned.
Yours faithfully,
(SignedJ
Eir Chief Secretary to the Govt. of Bombay,
Politicaland Services Department.
Bombay Castle, 13th April 1949.
Copy with a copy of tht:letter replied to. fonvarded for information
and guidance to the under mentioned Officersin continuation of Govt.
Endorsement, Political ancl Services Department, No. 2768146-A ,ated
the 15th January 1949.
B;y order of the Governor of Bombay
(Signed)-
For Chief Secretary to the Govt. of Bombay,
Political and Services Department.
To
The Inspector General of Yolic<:,Province of Bombay, Poona,
The Deputy Inspector General of Police, C.I.D., Poona,
The Commissioner of Police, Bombay,
The Collector of Cen.tra1Excise, Bombay,
The Collector of Customs, Bombay,
The District Magistsate, Surat,
The District Superintendent of Police, Surat,
The Supdt. of Policr:,B.B.& C.I. Railwav. "As desired by the Govt. of Daman, 1 have the honour to request
you to be so good as to issue the-necessary instructions to competent
authorities to allow free transit to twormed soldiers who will be es-
corting the Shroff of Revenue Department of Nagar Avely when he will
be shortlytaking funds from Nagar Avely to Daman crossing the India
territory.
1 shall feel obliged if you will kindly expedite the mattas early as
possible.
Thanking you in anticipation,
POLITICAL AND SERVICES DEPARTMENT
No. 2768/46-~.
Letter No. 1014/13/D/a/qg, dated the 27th September 1949, from
the Consul for Portugal at Bombay, addressed' to the Chief Secretary
to the Government of Bombay; Political and Services Department,
Bombay.
As desired by the Government of Daman, 1 have the honour to
request you to be so good as to issue the necessary instructions to the
competent authoritiesto allow free transit to two Daman Armed Soldiers
who will accompany the Shroff of the Revenue Department of Nagar
Avely when he will shortly go from Nagar Avely to Daman with funds
to deposit with the Revenue Department, of Daman.
Thanking you inanticipation.
Bombay Castle, 6th October, 1949.
From
Shri M.D. Bhatt, Esquire,I.C.S..
ChiefSecretary to the Government of Bombay,
Political and Services Department.
To
The Consul for Portugal at Bonibay.
Sir,
1 am directed to acknowledge the r~ceipt of your letter No.10141 13/
D/a/4g, dated the 27th September 1949 requesting the permission for
free transit to two armed soldiewho will escort the shroff ofthe Revenue
Department of Nagar Avely who will go to Daman to deposit funds with
the revenue department of Daman and to state that the necessary in-
structions have been issued to the Officers concerned.
Yours faithfully,
(Signed)
For Chief Secretary to the Government of
Bombay, Political and Services Department. Very Urgent.
Bombay Castle, 6th October 1949.
Copy, with a copy of a letter under reply forwarded with compliments
for information and guidance to under mentioned Officersin continiiation
of the Govehment endorsernent No. 2768/46/35177-A, dated the ~1st
JU~Y1949.
By order of the Governor of Bombay,
(Signed)
For Chief Seciletary to the Government of
Bombay, Political and Services Department.
To
The Inspector General.of Police, Bombay Province, Poona,
The Deputy Inspector General of Police, C.I.D., Poona,
The Commissioner of :PoIice,Bonibay,
The Collector of Central Excise, 13ombay,
The Collector of Custams, Bombay,
The District Magistrate, Surat,
The District Superintendent of Police, Surat,
The Supdt. of Police,'B.B& C.I. Railway.
POLITICAL AN13 5ERVIC.ES DEPARTMENT
No. 2768/46/62617-A
Letter from the ConsuI for Portugal No. 1287/13-D/a/qg, dated the
13th December 1949.
As desired by the Government of Daman, 1have the honour to request
to be so good as to issue the necessary instructions to the competent
authorities to allow free transit to two armed soIdiers who will accom-
pany the Shroff of the Revenue Department oNagar Avely when he will
shortly proceed from Nagar AveIy to Daman with funds to deposit with
the Revenue Department, of Daman.
Bombay Castle, 17th December 1949.
From
Shri M. D. Bhatt, I.S.,
Chief Secretary to the Governmeiit of Bombay,
PoliticaI and Services Department.
To
The Consul for Portugal at Bombay. Sir,
I am directed to acknowledge the receipt of your letter No. 1287113-
D/a/49, dated the 13th December 1949, requesting the permission for
free transit to two armed soldiers who will escort the Shroff of the
Revenue Department of Nagar Avely who will go to Daman to deposit
funds with the Revenue Department of Daman and to state that the
necessary instructions have been issued to the Oficers concerned.
Yours faithfully,
(Signed)
For Chief Secretary to the Governrnent of
Bombay, Political and Services Department.
POLITICAL AND SERVICES DEPARTMENT
No. 2768/46/11899/A
Letter from the Consul for Portugal, No. 260-13-D/a/50, dated
the 13th March, 1950
A desired by the Government of Daman, 1 have the honour to request
you to be sogood as to issue instructions to the competent authorities to
allow free transit to two armed soldiers who will be escorting the Shroff
of the Revenue office.of Nagar Aveli, from Nagar Aveli to Daman to
deposit funds with the Revenue officeat Daman.
Thanking you in anticipation.' '-
Bombay Castle, 16th March 1950.
From
Shri M. D. Bhat, I.C.S.,
Chief Secretary to the Govt. of Bombay
Politicaland Services Department.
To
The Consul for Portugal at Bombay,
Bombay.
Sir,
1 am directed to acknowledge the receipt of your letter No. 260-13-D-
a-50, dated the r3th hlarch, 1950, requesting the permission for free
transit to two armed soldiers who will escort the Shroff of the Revenue
Department of Nagar Aveli, who will go to Daman to deposit funds
with the Revenue Department of Daman and to state that the necessary
instructions have been issued to the officersconcerned.
Yours faithfully,
(Signed)
For Chief Secretary to the Govt. of Bombay,
Political and Services Department, ANNEXES TO COUNTER-MEMORIAL (E NO. 60) 379
Ve~yUrgent
Bombay Castle, 16th March 1950.
Copy, with a copy of the letter. iinder repIy fonvarded w.cs. for
information and guidance to the undermntioned officersin continuation
of this department endorsement No. 2768/46/64088-A dated the 30th
December 1950.
By order of the Governcir of Bombay,
(Signed)
For Chief Secretary to the Govt. of Bombay,
Political and Services Department.
To
The I.G. of Police, State of Bombay, Poona,
The D.I.G. of Police, C.I.D., Bombay,
The Cornmissionerof Police, Bombay,
The Collector of Central Excise, Bombay,
The Collector of Customs Bombay,
The Dist. Ma@., Surat,
The Dist. Supdt. of F'olice,Surat,
The Supdt. of Police, B.B.& C.I.Rly.
POLITICAL AND SERVICES DEPARTMENT
No. 2768146183763-A
Letter No. 537/13-D/50, dated the 26th May 1950, from the
Consul for Portugal at Bombay
Asdesired by the Governnient of Danian, 1have the honour to request
you to be so good asto issue your inst.ructions to the competent autho-
nties to allow free transit to two anned soldiers who will escort the
Shroff ofthe Revenue Department ofNagar Aveli, from Nagar Avely to
Daman, as he will carry fiinds to trûnsfer to Daman, and further 1
request you the favour of issuingsirnilarinstructions to the respective
authorities to allow free transitto three amed soldiers who will be
escorting the Shroff of the Revenue Department of Daman, from Ilaman
to Bombay, as the latter Shroff wilbe bringing funds to Bombay to be
deposited with the Banco Nacional Ultramarino.
As the funds in question are to be trnnsferred soon 1shall feel obliged
ifyou will kindly issue your instructions as urgent as possible. Bombay Castle, 1st June 1950.
From
The Chief Secretary to the Govt. of Bombay,
Political and Services Department.
To
The Consul for Portugal, Bombay.
. .
Sir,
1 am directed to acknowledge the receipt of your letters No,573-13-
Djal50, dated the 26th May 1950 requesting the permission for free.
transit to armed soldiers on their way to and from Nagar Aveli and
Daman, and to statethat the necessary instructions have been issiied to.
the Officersconcerned.
Yours faithfully,
(Signed) . . . .
For Chief Secretary to the Govt. 'ofeBombay,
Political and Services Department.
. ,
Very Urgent.
Bombay Castle, 1st June 1950.
Copy with copy of the letter under reply fonvarded with compliments
to the undermentioned officers in continuation of this Department
endorsement No. 2768/46/14612-Adated the 3rd April 1950.
By order of the Governor of Bombay,
(S'igned)
For Chief se6retary to the Govt. of Bombay,
Political and Services Dcpartment.
To
The Inspector General of Police, Bombay State, Poona,
The Deputy Inspector General of Police, C.I.D., Bombay,
The Commissioner of Police, Bombay,
The Collector of Central Excise, Bombay,
The Collector of Customs,bBombay,
The Dist. Magistrate, Surat.
The Dist. Supdt. of Police, Surat,
The Supdt. of Police, B.B. 8rC.I. Rly. .POLITICAL AND SERVIiZES DEPARTMENT
N;. .768/46/40603-A
Bombay Castle, 20th September 1950.
From
Shri M. D. Bhat, I.C.S., ,
Chief Secy. to the Govt. of Bombay,
PoliticaI and Services Departt.
To
The Consul for Portugal, .. .
In charge of the Conjiilate Gent:ral of Bombay.
Sir,
1 am directed to acknowledge the rcceipt of your letter No. 94.4(a)
13/D/s/50, dated the 12th Sept. Ig50, regarding permission forfree
transit to two armed soldiers escorting the Shroff othe Revenue Depart-
ment of Nagar Aveli from Nagar Aveli to Daman and to state tkat
the necessary instructions have been issued to the officersconcerrled.
- ' ~&rç faithfully,
(Signedj
For Chief Secy. to the Govt. of Bombay,
,!_
Political and Services Department.
Bombay-Castle, 20th September 1050.
Copy urith copy of the letter under reply forwarded with compliments
to the under mentioned officers in continuation of this Department
endorsement No. 2768146-39012-Adated the 11th Sept. 1950.
By order of the Governor of Bombay,
By order of the Governor of Bombay,
(Signedj
for Chief Secy. to the Govt. of Bombay,
Politicaland Services Deptt.
To
I.G. of Police, B.S., Poona,
The D.I.G. of,Police, (YID., Bombay,
' The Collecter of Central Excise, Bombay,
The~ist. Supdt. of Police, Surat,
The Dist. Magt., Surat,
The Supdt. of Police, B.B. & C.I. Rly. POLITICAL AND SERVICES ,DEPARTMENT
No. 2768146-11927-A
Letter from the Consul for Portugal in charge ofthe Consulate General,
Bombay, No. 263/13-D/a/51 dated the 2nd March 1951
As desired by the GovernmentofDaman 1have the honour to request
you to be so good as to issue your instructions tthe competent autho-
rities toallow free transit to two armed soldiers who will be escorting the
Shroff of Revenue officeat Nagar Aveli when he will shortly be taking
with hirn funds to transfer from Nagar Aveli to Daman treasury.
Thanking you in anticipation.
Bombay Castle, 9th March 1951.
From
Shri M.D. Bhat. I.C.S.,
Chief Secretary to the Govt. of Bombay,
Political and Services Department.
To
The Consul in charge of the Consulate General
for Portugal at Bombay.
Sir,
1 am directed to acknowledge the receipt of your letter No. 263113-
D/a/51 dated the and March 1951, regarding the permission for free
transit to twoarmed soldiers escorting the Shroffof the Revenue Depart-
ment of Nagar Aveli from Nagar Aveli to Daman and to state that the
necessary instructions have been issiied to the Officers concerned.
Yours faithfully,
(Signed)
For Chief Secretary to the Govt. of Bombay,
Political and Services Department.
Bombay CastIe, 9th hIarch 1951.
Copy with a copy of the letter under reply fonvarded W.CS.to the
undermentioned officers in continuation of this Deptt. endorsement
No. 2768j461-10449-Adated the 5th March 1951.
By order of the Governor of Bombay,
(Signedl
ChPolitical and Services Department.ay, To
The I.G.of Police, Bwmbay State, Poona,
The D.1.G. of Police,C.I.D.,Bombay,
The Commissioner of Police, Bonibay,
The Collector of CentralExcise, Bombay,
The Collector of Customs, Bomba.y,
The Dist. Magistrate, surat,
The Dist. Supdt. of Police,'Surat,
The Dist. Supdt. of Police, Thana,
The Dist. Magst. Tharia,
The Supdt. of Police, :&.B.& C.I.Rly.
Annex E. No. 61
"GoaDefiesPortagueseTerror"
STRUGGLE FOR CIVIL LIBERTY SPREADS
PopularLeadersSubjected7'0Brutal Ttreatme~tt
The President of the Goa Youth League writes:
After the arrest and deportation of Dr. Ram Manohar Lohia, the
Goan public which accepted the challenge, kept up the torch of revolt
burning by defying the ban on public meetings by calling meetings both
in the towns and cities and in the villages. The only reaction of the
Government till the 12th of July was that of brutal assaults nn the
public and of temporary amests of speakers.
The very firstmeeting after Dr. Lohia's arrest was heldat Margao on
the 23rd ofJuly. Mr. Tristao Braganca Cunha addressed the meeting.
The success of this meeting c.reated an impression that the Government
had relaxed the stringency of its laws. Later events belied this impression.
At Margao on the 30th Jiine, a Public meeting was called and Miss
Berta Menezes Braganca wa~ scheduled to speak. About an hour before
the announced time the entire place w;~ cordoned off by the military.
At the appointed time Miss Braganca came to the spot accompanied by
Mr. Tristao Braganza Cunha. A crowd of over a thousand was aIso
present, The Captain of the troops ;tpproached Miss Braganza and
ordered her to clear away from the place before the Military took any
drastic action.
Miss Braganza, however, refused to ci,mily with the order and began
to address the meeting. The Captain summoned his troops and ordered
her to be removed from the place. His plea was that if she were allowed
to speak the gathered public would get out of control and indulgil1acts
of violence.Mr. Tristao Braganza Cunha told the military authcirities
that he couId guarantee good behavioiir from the public if they were
allowed to hold the meetingpeacefully and if the troops were withdrawn.384 ANNEXES TO COUNTER-MEMORIAL (E NO. 61)
The Captain took this as an affront to his authority and began beating
Mr. Cunha with his baton and ordered the troops to assault him. About
six soldiers began assaulting hirn with the butt ends of their guns till
he fell down on the ground. By this time the crowd interfered and hlr.
Cunha was rescued. Miss Berta Braganza was also assaulted.
On seeing that the assault had had no effect on the determination
of Mr. Cunha, he and Miss Braganza were forced into a military lorry
and after taking them through devious routes, they were releasedat
Chandor, some ten miles away from Margao. The troops ,set uponMr.
Vicente Cunha and forcibly snatched away from his head his Gandhi
Cap, tore it to pieces and used the rags to wipe their shoes.
Besides these meetings in Margao several meetings have been held
in different villages on various days; where the- troops have taken
recourse to merciless assault on the public.
Inhuman incidents took place at Cuncolim on Sunday the 7th instant
when a public meeting was called by the villagers to defy the ban on
meetings. Half an hour before the scheduled time about eighty armed
troops motored to Cunolim. In a restaurant, in the village bazar Vicente
Cunha was having a cup of tea. He was wearing a Gandhi Cap.
The Captain of the troops-the Administrator-entered the restau-
rant, dragged Mr. Cunha out and personally assaulted him with his
baton and searched his pockets for literature.After this, the Adminis-
trator caught hold of a young boy of about sixteen years, by name
Ananda Corado, who has been an active worker in the movement.
Curado was taken to the local police chowki, locked up in a room and
was beaten up with butt ends of theguns. The Administrator, demanded
him to shout 'Viva Portugal' which the boy refused. When beating was
of no avail the Administrator ordered a soldier to pierce a bayonet in
the boy's mouth. But even this was of no avail. Curado was pushed out
of the Police station with a torn lip anabroken tooth.
In spite of these brutalities, another meeting was called at Chandor
on the 10th instant to commemorate the death anniversary of Mr.
Louis de Menezes Braganza, a noted patnot and the g-reatest journalist
of Goa. The troops drove in, as usual half an hour before the meeting
time and cordoned the maidan. Yet the public gathered and the meeting
commenced right at the scheduIed time. The troops did not interfere
with the first speaker who spoke in Portuguese. But when the second
speaker, Joachim Dias, has spoken for about 15 minutes, the Adminis-
trator came forward and ordered him to stop. Unmindful of the order
the speaker continued with his talk. The administrator repeated his
order thrice and then dragged the speaker away and detained him in the
military car.
No sooner was he taken away, Chandrakant Kadodkar began addres-
sing the meeting. This time the Adrninistrator instead of arresting the
speaker ordered his soldiers to attack him. The speaker was mercilessly
beaten by three soldiers at one time till he was rescuedby the ladies
present. Others from the audience too were charged with butt-ends of
the guns. Among the victims were Miss Berta Braganca, Vicente Cunha
and others.
But the police brutalities have failed to cow down the spirit of the
people. On the contrary the movement is gathering rnomentum and more
and more people are coming forward. It now appears that the Government has çtarted fresh methods of
terrorisinthe people.On the 12th instant hfr. Tristao Braganca Cunha
the founder of the Goa Coi-igresswas called to the Police Station at
Margao and was arrested there. He has been now detained at the Military
Prison at Aguada in Goa and is awaiting Court Martial.
The Government has decided to try Mr. Cunha by Court Martial in
spite of the fact that no acof violence have taken place anywhere in
Goa and no Martial Law has been imposed."
ARRESTED GOA CONGRESÇ LEADER TAKEN TO AGUADA FOR7
Tristao Braganca Cunha, founder of the Goa Congress Comrnittee
who was arrested at Margao, on July12 by the Colonial Administration
of the Portuguese Government, has been, itis reported, taken to the
Military Fort at Aguada, where he is kept in detention. It is also reported
that he wilbe tried by Coui-t Martial.
The Goans are agitating fclrthe public trialMr. Cunha with oppor-
tunities for defence.
SECRETARY OF LOCAL CONGRESS COMMITTEE TO BE TRIED UNDER
MARTIAL LAW
Mr. Joachim Dias, President, Goan Youth League, has sent the
followingtelegram to Mahatma Gandhi. and Pandit Jawaharlal Nehru.
Tnstao Braganca Cunha, Secretary, Goa Congress Committee, arrested
in Goa, detained in Military Prison at Aguada Fort, awaiting Court
Nartial, Martial Law not proclaimed. Court Martial unconstitutiona1.
Goa Fascist Government allows no defeiice. Request mediation National
Congress for regular, public trial with opportunities for defence. Goa
movement completely non-violent.
Annex E.Ni) .2
FROM THE "INDIAK E;XPRESS M",DRAS, DATED 14.12.51
GOAN GOVE.RNMENT CLOSE DOWN
COLLEGE
Students Quoted Nehru's Speech in Essay
Bombay, Dec. 13. .
The Portuguese Govemmi:nt in Goa. have suspended 'sine die' the
leading educational institutionAlmeida College, which has been sym-
pathetic to the national movement for liberation of Goa from foreign
domination, according to information seceived by the United Front of
Goans inBombay today.
The immediate ground for closing down the institution appears to be,
according to the United Front, that a teacher in the collegegave an
essay to the students of the rnatriculation class on the "role of students
in Free India" and some students, urhile answering quoted Pandit
Nehru's recent speech to the National S1:udentJsConference in Bombay.
26The matter was reported to thc Govemor who issued orders for the closing
down of the college.
The same sources further revealed that the Goa Government have
also issued orders to their officials, particularly the Hindus, to corne to
the officeintrousers and not in dhothies.
In a statement to the Press in this connection, Mr. Waman Desai,
General Secretary of the United Front of Goans, said that this ruthless
suppression of elementary civil liberties would not cow down the hearts
of Goans who would only redouble their determination to put an end
to Portuguese colonialismin Goa.
Annex E. No. 63
FROM THE "FREEGOA"B , OMBAY DA,TED 25.7.1955
r954 VICTORY OF GOANS AND WARLIS
LIEERATION OF DBDRA AND NAGAR HAVEL1
What was done by Father Jeremias Mascarenhas a century ago and
Menezes Braganza in r933 in the Governinent Council was nothing more
than giving shape to the ideas and feelings that were brewing in the
oppressed rninds and hearts of Goan Patriots.
The Independence of India broadened those ideas and gave them
more decision. Thus on 18th June 1946 broke out the first nationalist
and popular movement taking up the thread of the long series of strug-
gles for the Liberation of Goa. And on the zznd July 1954 came the
Liberation of Dadra. An act shameful for the name of the Portugiiese,
directed the attention of the nationalists towards that lèrritory. In fact,
Capt. Romba and his agents tried to entice various nationalistwith
false promises of political autonomy forGoa. Perhaps, drawn by good
faith, the United Front Goans accepted to go to negotiate it in Damaun.
Once there, Romba and his Police Commissioner then substituting the
Governor, arrested the guests, repeating the treacherous feats of ALbii-
querques and Gamas.
We are told thst on that occasion the Portuguese Forest Officer,
Passos, who was in Nagar-Haveli said: "Damaun is a lostcase for us".
As soon as it was released, the working committee of the U.F.G.
resolved to avenge thedisloyal act. And al1attention was concentrated
on Dadra.
Several peaceful attempts were tried by theU.G.F. to liberatDadra
but fear and distruts on both sides brought in impedirnents. Informed
of what was happening, the Portuguese Govemment re-enforced the
Police and armaments.
Tired of the failure of peaceful means, the U.F.G. tried a rnixed
process: about seventeen people were sent to inspect the Territory of
Dadra; but on its first contact the PoliPostopened firewith guns and
a machine-gun. The nationalists, with no such arms to put apresistance
with no hopes, left everything to fatAl1of a sudden the machine-gun
was silent. It was clear that it was out of order. Then, the rnost daring
of the nationalists, in spite of a bullet wounhisarm, advancecl from AWKEXES TO (:OUNTER-MEMORIAL (E NO. 63) 387
the back of the Police Post and with first weapon he could get hold of
dealt a mortal blow on Aniceto Rozario who was trying to put the
machine-gun in working order. The silencing of the machine-giin was
foliowed by a terrific panic arnong the Police. They surrendered and the
population taken by surprise acclaimeij the Liberators !
There is another version that says that Aniceto Rozario was willing
to give in to the demands of another poup of nationalists and that the
peaceful occupation of Dadra was to corne into effect on the day on
which Aniceto would leave Dadra for Damaun; but events precipitated
and the permit for Aniceto's departure arrived after his death !
The fail of Dadra created panic in .Nagar Haveli. Should the U.F.G.
have gone there the followingday it woiild have found the doors open-say
the local nationalists of Nagar-HaveIi. Siich was the confusion and
fear that reigned that this ijtate of mind was seen to reflect even in the
most ordinary routine work of the Administration. A propos of every-
thing was a warning about the grave situation.
This demoralisation was taken advan tage of by asection ofthe Xational
Cong~essGoa which called itself Azad Gomantak Dal.
The Azad Gomantak Da1 entered 1J;igar-Kaveli on 28th July through
the village of Naroli. Prepared for al1eventualy-a fight should a fight
he provoked or peaceful means if the Portuguese desired them-the Azad
Da1 went armed with craclrcrs used iii fire works. The first arms they
got were from the Faroli Police Post a.nd Patelate. Nobody was injured
or illtreated. And it Ras nol. long before the people's co-operation came:
Big groups of people acclaiined the Liberators. Such was the shouting
that it seemed asif various battalions were on the march.
In order to be informed about events the Nagar-Haveli ildministration
sent out spies to calculate the strenght of the Azad Dal, accordirigly to
prepare the defence. A greal: part of the petrol was spent in transporting
sand for erecting barricades of sand bags at the Police Post. About two
hundred armed men excitetlly waited to repel the natiorialist Goans.
In the meanwhiIe events were precipitating. The volunteers of the
Goan People's Party were entering tl-irough Khandwell. News came
like lightning. "The red flag is cornine;" was a cry that struck terror in
some and filled with enthusiasm others. The Goan People's Party upas
helped by locaI Warlis.
The march in two directic~nskilled the last spark of hope in the coloni-
alists. And the informers, full of fear, multiplied the number of the
Liberators a hundred fold.
They informed Capt. Fidalgo that the Liberators were coming in
thousands. What could just zoo men with the few machine-guiis and
handgrenades, which Lt. Falcao liad, do against thousands of people?
When the Portuguese forces were fleeing to Khandwell they met the
Goan People's Party on the Racoli bridge. There the Capt. ordered his
men to open fire with guns ;and machine-guns. The result : one machine-
gun was put out of order and two PoLicewere seriously wounded.
Finally, the Capt., the Police Irispector and the Police Sub-inspecter
went to surrender themseIves to the Iiidian Police in Udwada. But the
Sub-Inspecter Pegado, hated by the people, ordered the men who re-
mained behind to open fire on the Liberators.
It is interesting to know i:hat-during this period of the liberatictn, the
Portuguese Press transfornled the Police Inspector, FaIcao, into a
hero who flew frorn one end of the Territory to the other, triumphantlykeeping up a guerilla fight. The truth is that in face of the unexpected
happenings poor Falcao sobbed like a child, hoping that the genius of
Capt. Fidalgo might operate miracles, like those he boasted of having
operated in hisfanciful African campaigns.
The fact is that seventy volunteers disarmed the strateof a Captain,
a Police Inspector, two Sub-Inspectors and two hundredportuguese
Police, and without killing a single person Liberated Kagar Haveli.
And the struggle goes on in Goa, Damaun and Diu in spite of the
fierce resistance puup by the Portuguese colonialism.
Big sentences were introduced to intimidate the Satyagrahis. In
practice, however, it is seen that instead of receding the movement
advances and that the Portuguese Government is the first tu disrespect
its own laws, for after practising al1rnanner of tyranny and violence on
the Satyagahis, itputs them outof its artificial border.
The struggle cannot stop till tlast vestige of colonialism disappears
from the sacred soi1of India!
Annex E. No. 64
REPORT
of the New Administration
on the conditions in
Nagar Aveli and Dadra
before and after the liberation from
PORTUGUESE COLONIALISM
THE GOALEAGUE
Annex E. No. 65
(Part I)
FROM THE "INDIAN EXPRESS", DATED 29TH NOVEMBE1 R954
NEW ADMINISTRATIVE SET-UP IN DADRA, NAGAR HAIrICI,I
From Our Correspondent
SiIvassa, November 28.
The recently liberatedenclaves of Dadra and Nagar Haveli with a
population of more than 42,000, celebrated Thanksgiving Day on
November z jto commemoratetheir liberation from the Portuguese yoke. ANNEXES TO G3UNTER-MEMORIAL (E NO. 65) 389
Thousands of people. sin,ging and dancing to the accompaniment of
conch music, flocked to Silv;lssa, administrative seaof Nagar Haveli, to
renew their pledge of loyalty to the Indian flag, which was unfurled by
Mr. Appa Karmalkar, Administrator.
Thanksgiving prayers were offered throughout the area in chnrches,
temples and other places ofworship.
November 25 was selectecl by the people of these two enclaves for the
celebrations because it was on that day, more than 400 years ago, that
the Portuguese obtained a foothold in India (Goa).
A 25-man Advisory Courici1of a truly representative character was
inaugurated by the Admiilistrator. The Council inchdes seven pro-
minent Adivasi pateIs of thi: area, who were present in their traditional
tribal dress.
RESOLUTIONS
Irnmediately after the inaugural ceremony, the 25 menibers of the
Council, preceded by a procession of school children of Silvassa singing
Indian national songs, paratled the main thoroughfares of Silvassa.
In the afternoon the Cciuncil went into session and unanimously
passed three resolutions. One expressed to the "National Government
ofIndia Ourpatriotic will arid fervent ciesireto integrate these liberated
territoriesith the Indian Union and t.realise and solidify the inalien-
able territorial and political unity".
, By another resolution, th,: Council congatulated the people of Mahe,
Karaikal, Yenam and Pondicherry for their "resistance in the struggle
for liberation of the French settlemenl. in India".
The Council also expressed its "great joy at the 'de facto' transfer of
the French settlements to the Indian Union through peaceful riegoti-
ations,
By the third resolution, the Council appealed to the stafi of the
administration of Dadra and Nagar Haveli to serve the new regime of
these liherated enclaves with "equal loyalty and enthusiasm, since
liberty was a great gift thaf. God had given to humanity".
The resolution ardently hoped that the people of Goa, Daman and
Mu would, in the near future, hoist tlie Indian flag in their respective
territories.
After the resolutions were passed, several members rose to speak and
in tum pledged their unflinching loyalty to the present administration
and the Indian Union. The speech by Brother George of the Roman
Catholic monastery in Dadra was, in particular, very insliiring and was
repeatedly applauded by the Council rnembers.
ANOTHER EXECUTIVE
For efficient and smooth iidministrat ion, an additional administrator
in the person ofDr. Antonio Furturdo has been appointed. Dr. Furturdo,
who was formerly Administrator of ViUage Comrnunities in Goa and a
Judge of the Administrative Tribunal, Ilas been allotted the portfolios of
Justice, Agriculture, Public Works and Health, while Mr. Appa Kar-
maIkar holds the port folios of Revenue, Education, Forest and Post
arid Telegraphs.
Mr. Kalmalkar said that he had selected capable men on the Advisory
Council of Nagar HaveIi afti:r he had taken expert advice frorn varioussections of the population of the two enclaves. Al1new proposals would
be first placed before the Council for deliberation and then the Adminis-
trators would finally decide on the line of action to be taken. The Council
was purely of an advisory nature, hlr. Karmalkar added.
Alr. Furturdo, Additional Administrator, said that the adniinistration
had chalked out a blueprint for agricultural reforms in Nsgar Haveli.
He disclosed that more than 1,000 families of tillers would soon be
benefited by a scheme by which each cultivator would be given five
acres of land on nominal rent for food crops. '
In addition, cultivators would aIso receive, freeof charge, materials
for construction of huis on tlieir respective farms.
Dr. Furturdo also said that the administration proposed to start a
fund for the welfare of Adivasis in the area.Two farmers' shibirs would
soon be organised on the Governnient Agricultural Farm at Silvassa,
he said.
Shibir programmes would include demonstration of better farming
and poultry-lieeping methods, construction of approach roads, compost
pits, latrines and school buildingsthrough shramdan and discussions of
various problems involved in the work, he addcd.
(Part 2)
PXBCHAYAT '
Dadra I. Jaiantybhai Narangui Dessai
2. Rrother George, C. M. F.
Silvassa 3. Gregorio Coutinho
4. Vanmali Guela
5. Narayan Ganpatram Choubal
>I 6. Madu Davalia
Sarnbarvanim 7. Claudio Nunes
Ameii S. Daia Goan
Atola g. Chambar Limgi
hfassate IO. Bica Vansa
Naroli II. Gulabsing Chotusing Parrnar
12. Ramsingh Mohansing Parniar
13. Mangal Khalpa Marga
14. Raugi Sravan Choffdhari
Surangui 15. 1,acxi Cursan Gorat
Canoel 16. Suleman Pardhan
Rudona 17. Bab10 Sorvan Varto
Carchonde 18. Eracsha Cawasgi
Vagehaurum 19. Dangi Dorma Burcul
Dudonim 20. Darma Cursan Kharparia
Kerdi 21. hZangiDhacal Ghotai
Mandonim 22. Darma Nanum Maelcar
Chinsda 23. Deugi Katna Narga
Randa 24. Deulia Mala.
Giilonda 2j. Rehe Gailinte. "THE PEOPLE ARE PROUD OF THE SOCIA LND ECONOMP ICOGRESS
THEV HAVE ACHIEVED SINCE JULY 1954AND WHATEVER THE INDIAN
GOVERNMEN SYS ON THIS ISSUE BEFORE THE HAGUECOURT,
DADRA AND NAGAR HAVEL I ILLNOT ACCEPT A SINGLEPORTUGUESE
ON THEIR SOIL AT ANY TIME.
"It is indeed sarcastic that a colonial regime which denies the funda-
mental freedom of expression and which continues to keep in abject
slavery six lakhs of inhabitanon Indian soi1 should seek to justify
its continuance before an organ of the United Nations whose Charter
contains so clear a declaration against such reOnmthe other hand,
high officials of the Goa Government have boastfully claimed that they
will retake Dadra and Nagar Haveli by force of arms. There is reference
also to a treaty o1779 between the Portuguese and the Marathas as
implying Portugal's continuing rigto these territories.
"Does she wish to remind the world that she acquired these territories
through the force of arms, tyranny, bloodshed and stratagem? she
wish to base her claim on duplicity that led to an annual payrnent to her
since1780 of Rs..rz.ooby the Court of Poona that was changed three
years later to the rental from 72villages of Nagar Haveli?
"Salazar's dictatorial regime in Portugalapparknows no decorum
and has abandoned every senseofright to the Indian people owhich
we Goans are a part. He does not hesitate to bring ridiculous claims
before the InternationaCourt whose functions are governed by the
principles set out in the United Nations Charter. Can the International
Court interfere with the inalienable right of a people to self-government
and freedom? And don't the wishes of the people ofthese territories
matter?"
Annex E. No. 67
FROM THE "FREE GOA", DATED 25TH JANUARY, 1956
PROTEST IN NAGAR HAVEL1
A mass meeting was held on Januarrg in Silvassa the Administrative
Headquarters of the Liberated territoriof Nagar Haveli and Dadra
to protest against Portugal's announcementhat it has taken to the
International Court of Hague demand for the right of passage through
Indian territory to go to recapture those territories.
About 12speakers, of aii classes, sponethe occasion besides the
Sarpanch and thePresident of the Nagar Haveli Congress. Among these
were two Varli speakers, Sonio Volvi of Saili and Jetia of Sambarvani.
The former trembling withold age and with consternatisaid that he
has known three generations and that in the 50years hehad known
the Portuguese from very closeHe said thathe had had the occasion
of going to Goa, taken thete by the Portuguese to figure in a Colonial
Exhibition.He had then been given a new suit of clothes; but at that ANNEXES TO COUNTER-MEMORIAL (E NO. 67) 393
time the wages were 6 annas per day, Liberation, besides many new
things, had brought them the daily wage of one rupee. Nobody to-day,
said Sonio Volvi, wanted tyhePortuguese back but it is necessary, he
went on, that the new Administration should not remain satisfied with
what it has done. It must do much more. He urould be satisfied,he said,
only when the daily wage of the workers is Rs.IO and when a11will have
enough to dress ashe had wfien he went to the ColonialExhibition in Goa.
Jetia India said that so strong was the wish of the people to live in the
present condition of freedorri that he would resist with stones and sticks
the return of the Portuguest:.
The meeting was also addressed by Umetsing Mori, Chotusing and
Gomansing Mori.
Umetsing Mori affirmed that the Portuguese era had definitely come
to an end andtliat itwas unimaginable that the regime of freedom could
give placeagain to the coloriial regime.
Chotubai who had taken direct part iii the liberation of Naroli declared
that he challenged the Porruguese to enter Dadra and Nagar Haveli.
He said he knew they were cowards from the way they fled from there.
Gomansing said that he fought to throw the Portuguese out and that
he would find it easier toelieve that theSun would rise in the West than
that the return of the Por1:uguese to their old colony would ever be
possible.
Most of the speakers had taken direct part in the Liberation Campaign
and vehemently repudiated the stagnant Portuguese rule,
The follouing resolution was unanimously approved:
The people of Dadra anct Nagar Haveligathered in thisvast meeting
without distinct ion of class and creed, proclaim their complete liberation
from the Portuguese colonization and declare before the UN0 that the
right of liberty is inalienable and iniprescriptible.
They declare moreover that it is the duty of Hague Tribunal not merely
to observe the spirit and 1et:ter of the UN0 charter but also take into
consideration tlie wishes of the People of Dadra and Nagar-Haveli
represented by their Panchziyat, against which the fascist Portiiguese
regime seeks to exercise military action.
They emphatically lodge their protest against any act or contract
which may contribute towards the colonial subjugation of the people
of Dadra and Nagar-Haveli as abject and invalid because the material
and moral slavery of the people can never be object of any transaction
and the history of the Portuguese in Asia, in the words of her own
historian has been the history of piracy.
They further declare that even if the Government of Indian 'Union
consents to discuss at the Hague the questions of her çovereignty such
as of granting of passage to the Portuguese to recolonize Dadra and
Nagar-Haveli, the people of these terrritories soIemnly swear that they
will resist by al1means within their power and with every sacrifice any
attempt of the Portuguese to reoccupy these territories to strangle the
precious fruits which the colonizers di:nied and which the Liberation
has restored-the sacred Liberation which was obtained by the people
repelling the injust and inhurnan domination of the Portuguese."
At the end the whole gathering shouted: "Never more firangiraj !Jai
Hind!" And the sound of voices was drowned in the tumultuous clapping
welcoming the freedom reconquered by the people of Dadra and Nagar
Haveli with the aid of a handful of Goa.nheroes !
- Annex E. No. 68
LETTER FROM THE PRESIDENT OF VARISHTHA PANCHAYAS TI,LVASSA,
TO SHRI hl. CSETALVAD AT,THE HAGUE
ENVELOPE
BY AIR MAIL
PAR AVION
Registered
ADVOCATE SHRI SETALWAD,
From C~O Secretariat oInternational
The President, Court of Hague
Varishtha Panchayat,
Free Nagar-Haveli& Dadra NETHERLANDS
(- Po0st Master, 31814
Vapi(W. Rly.)
INDIA.
Hotel desIndes
The Hague
3
13-4-57
BACK OF ENVELOPE
IO9
Nagar Haveli,Silvassa.
SEAL
LIBERATED AREAS OF DADRA AND
NAGAR HAVEL1
From :
Narain G. Chowbal,
To : Silvassa (Nagar-Haveli)
ShriSetalwad, c/o Post Master,
Advocate of India in the Vapi (1%R'.ly.)
Hague Court, INDIA.
NETHERLANDS. ANKEXES TO COUNTER-JIEMORIAL (E NO. 6Qj 395
Excellency,
With due respect Itake t'heliberty cifforwarding to your Excellency
a copy of the resolutionuna~iimously approved at a mass meeting of the
people of Nagar-Haveli and Dadra on April 14 last in Silvassa, the seat
,of the Administration, together with a copy of the pledge taken on the
samc day before the statue of Mahatma Gandhi.
It is the fervent desire of the people of these Territories to see their
Iiberation, which is their birthright, defended by the U.N. Charter,
recognized and confirmed.
As the President of the Varishtha Panchayat 1 appeal to Your Excel-
lency to interpret before the ivorld the just sentiments of Our People.
Yours Respectfully,
(Signedl Narain G. CHOWBAL,
President, Varistha Panchayat.
Silvassa.
--
"The people of Dadra ancl Nagar-Ha.veli gathered in a mass meeting
protest against Portugal's riretensions and draw the attention of the
Hague Court and International public opinion to the fo1lowing:-
I. AfterPortugal had taken its complaint to the Hague Court dernand-
ing free passage through lnclian Territciry to occupy Dadra and Nagar-
Haveli, the people of these territories protestedthat any decision of that
Court regarding the matter, would be irrelevant and null, for neither
the people of these Liberated Territories, neither its representative body
-the Panchayat-nor its dmpbcto Government were heard in the case
which is going on between third parties: Portugal on one side and
India on the other.
2.The present de factoGovernment of Dadra and Nagar-Haveli is as
respectable as the Governrnent of the Portuguese Dictatorship. Both the
Governments were the result of a Revolution. And so, just as the present
Portuguese Government overthrew the Democratic Government of the
Portuguese Constitutional F:epublic, tlie people of Dadra and Nagar-
Haveli overthrew the Portiiguese foreign domination and established
their own local Administration, which in a short period of a littlt: over
z years has done for the regions what Portugal failed to do cturing
almost two centuries of its domination. Besides, the Portuguese Govern-
ment established itself in Inclia by conquest and such a governmeiit can
never be a legitimate government but a dz facto government, for
otherwise the basis of legitiniacy would be conquest or violence and the
inalienable and imprescnpti1)le birthright of peoples would not exist.
3. The people of Dadra and Nagar-IIaveli, itsVarishtha Panchayat
and the Azad Dadra and Nagar-Havi:li Sanghathana Çamiti scveral
tirnes manifested to the Indian Government their desire to intizgrate
with the Indian Union. This request, which has not yet been considered ANNEXES TO COUNTER-MEMORIA (L NO. 68)
396
by the Indian Government, leaves them politically isolated from the
rest of India. They, therefore, demand that either this integration be
accomplished or the juridical and political status of the present Ahinis-
tration of these Liberated Territoriebe recognized.
4. Should the Hague Court reject Portugal's demand, that Court
wili merely have consecrated the spirit and the letter oU.N.O. Charter
which orders respect for the fundamental rights and liberties of Man and
recognition of the political aspirations of the Colonial or-self-gover-
ning peoples and to assist them in the progressive development of their
free political institutions. AIt(3) and Art.73 (b).
5. Should the Hague Court, without taking into consideration the
new political situation in these Territories, permit the Portuguese
Government (who curbs the civil rights of its own people and opposes
the progressive liberation of its colonial peoples) to take its troops to
reoccupy these liberated territorithen in that case, the only recourse
left the people of Dadra and Nagar-IIaveli is to assert their right of
defence against the'new oppression, by either organizing their defence,
or by requesting India's military help to prevent that the old aggressor
of Indian Territory corne to reinstall itself on India's soil, making light
of human liberty and of the imprescriptible and inalienable right of
self-determination."
(Signed) Narain G. CHOWBAL.
PLEDGE
The Liberated people of Dadra and Nagar-Haveli gathered to-day in
a mass meeting in Silvassa to protest against the Portuguese colonialist
pretension to re-dominate these Territories, soIemnly pledge before the
statue of the Father of the Indian Nation their fidelity to the Indian
Flag and their firm decision to prevent at any cost the re-establishment
of the Portuguese colonial oppression overthese Territories.
Silvassa,
14-4-1957.
(Signed) Narain G. CHOWBAL,
1 certify that these Annexes are either an exact copy or
a faithful translationof the relevant originals.
(Signed) JOHN ALOYSIUT SHIVY,
Agent of the Government of India. O
Chisda
55' 73' Eastfrorn Greenwich 5' ' . IO' RIGHT OF PASSAGEOVER INDIAN TERRITORY
(PORTUGAVINDIA),
COUNTER MEMORIAL OF THE GOVERNMENT OF INDIA REFERENCE
De Facto LocalAdministration
[-1 ofDidra and Nagar Aveli.
--, Railways
-- Roads
Minor Roads
50'
COPYRIGEORGE PSOLTD & MA2
-
-- 15'
MAPOF
IAMAN, DADRA,
NAGAR AVEU
AND
RROUNDING INDIAN
DISTRIC:TS
Scale1:10Ci,000MAP 2
Counter-Memorial of the Government of India