Rejoinder of the Government of India

This volume should be quoted as

"1.C.J. Phadings, Case cotzcerning Righo/ Passage over
1ndàa.it Territory (Portztv.lIndia), Vol. III."

Le prescrit volume doit être cité comme suit:
RC. 1.1. Mémoi~es, Aflaire du droit de passage sur

terribmre indien(Portztgal c. Inde), vol. II1,

Sales number
NO de vente : 258 [ COUR INTERNATIONALE DE JUSTICE

MÉMOIRES, PLAIDOIRIESET DOCUMENTS

AFFAIRE DU
DROIT DE PASSAGE

SUR TERRITOIRE INDIEN

(PORTUGAL c. INDE)

(Rôle général32 - Arrêtdu 26 novembr1957
etdu 12avrirg60)

VOLUMEIII

Duplique CONTENTS l - TABLE DES MATIÈRES '

PART 1.-APPLICATION INSTITUTING PROCEEDINGS
AND PLEADINGS

PREMIERE PARTIE. - REQUETE INTRODUCTIVE

D'INSTANCE ET MÉMOIRES

SECTION B.-PLEADINGS (conlinued)

SECTION B. - MGMOIRES (sui.&)

6.-Rejoinder of the Government of India (Ir59):
Page
INTRODUCTI O.N.................. I-6

THE HISTORICAL FACTS .................. 74-54

TheMaratha Pe~iod ................... 7-146
Section 1.The Background to Portuguese-Maratha negotia-
tions for a treaty of friendship and alliance and the mission
of the Portuguese envoy, Narayan Vithal Dhume in1775, 7-32

Section II. The bases ofnegotiations for a Treaty of friend-
ship and alliance. Portuguese proposds. The Portupese
text of 4 May 1779 in Portuguese and Marathi languages.
The Maratha text of 17 December 1779. The Maratha
decision o1776 to make a grant of Saranjam to the Portu-
guese and to their envoy, Narayan Vithal Dhume .... 33-53
Section III. The Nature of the Saranjam or Jagir Grant
receivedby the Portuguese in 1783 and 1785 ...... 54-104
Section IV. The Maratha Grants of 1783 and 1785. .... 10j-124

Section V. Maratha Sovereigntyover Dadra and Nagar Aveli
subsequent to grants of Saranjam or Jagir 1783 and 1785 125-146

l The page references originally appeain the pleadings habeen altered
to correspond with the paginatof the present edition.
Wrhere the referenisto another volume of the present edithevolume is
indicated ba figure in heavy Roman type.
pagination dlaprésente édition.autre ont émodifiépour tenir compte de la
Lorsqu'il s'agit d'un renvoi a un autre volume de la présente édition, un chiffre
romain gras indiqle iiumkro dce volume. Page

The British Period .................... 147-210
1.Alleged basic defects of the lndian argument ..... 148-158
II. British attitudeto rights previously acquired by Portu-
gal. ...................... 158-166

III. Transit of Persons. ................ 166-186
IV. Transit ofGoods ................. 186-210

The Post-IndefiendencePeriod ............... 2I1-254
Section 1. ...................... 211-214

Section II. Portuguese responsibility for break-clown of tra-
ditional regime of intercourse between Portuguese poçses-
sions and ndia ................... 215-226
Section III. The insurrection in Dadra and Nagar Aveli and
the establishment of a local de factoGovernment .... 227-254

THE ..ZELEGED ~RTUCUESE KIGHT OF, TRAXSIT IS NOT EXER-
CISABLE INTHE CIRCUMST;ZN OCETHSE INSURRECTION . . 289-310

Annexes @ theRejoinder of theGovernmentof India:
Annex F l

Maratha Period

I. Report of Captain James Inchbird, dated the 13th January,
1740 .......................... 312
z. Letter'of the Governor of Bombay to the Viceroy of Goa,
. dated the 16th January, 1740 .....-........ 316
3. Treaty of 1760, .................... 317

4. Letter from Balaji Baji Rao, commonly known as Nana, to
'the Viceroy, Count of Alva, dated the 9th November, 1755 . 317
5. Letter from the Viceroy, Count of Alva, to Balaji Baji Kao
Pradhan, dated the 4th January, 1756 ........-- 318

lThe text of Indian Aiinexes A, I3andC (to the PreliminarObjection and
Counter-Mernorialand of Annexes D and E (to the Counter-hlemorial)isto be
found inVol. 1pp. 189-564,and Vol,II, pp.157-396,respectively. Page
G. Letter from the Secretary of State, Belchior Jose Vaz de Car-
valho de Balaji Baji Rao Pradhan, dated the 4th January,
1756 . . . . . . . . . . . . . . . . . . . . . . . . . 3x8
7. Royal Instructions to the Count of Souza, dated 9th April,
1765 . . . . . . . . . . . . . . . . . . . . . . . . . 3 18
S. Letter from the Secretary of State, Francisco Xavier de Men-
donca Furtado, to the Viceroy, Count of Ega, dated the 26th
AIarch, 1761. . . . . . . . . . . . . . . . . . . . . . 319
9. Letter from the Viceroy, Count of Ega, to the Secretary of
State, dated the 12th January, 1762 . . . . . . . . . . . 320
IO. Reply of the Council of Bombay, dated 18th October, 1780, to
the protest of the Governor of Goa, dated the 17th July, 1780 320

rI. Letter from the Secretary of State, Martinho de hlello e Castro,
to the Governor of Goa, dated the 6th Match, 1782. . . . . 321
12. Letter of Vithal Rao Goraksh, Portuguese emissary, to the
Secretary of State, Sebastian Jose Ferreira Barroco, dated 1st
June, 1791 . . . . . . . . . . . . . . . . . . . . . . 322
13. Letter from Raghoba to Laxman Appaji, dated and Septem-
ber,1776.. . . . . . . . . . . . . . . . .,. . . . . 323
14. Memorandum relating to return of Sarai, 1775. + . + - . .
15. Sanad for return of BotelIo, 1776 . . . . . . . . . . . .

16. Letter from the Governor, Francisco da Cunha a Menezes, to
March, 1787. . . . .te M. .in.o.de.M. . .e . . . . . .ed .2t. .

17, Extracts from "A India Portuguesa" by A. Lopes Mendes .
18. "Province of the NorthH-Extract from "Portuguese e hlara-
thas", Boletim do Instituto Vasco da Gama, No. 9, 1931 . .
19. (Part 1) Letter from Domingos hlascarenhas to Narain Sinai
Durno, dated 26th June, 1783 . . . , . . . . . . .'. . .
(Part 2) Riker's note to the letter of the Governor of Goa,
dated zznd March, 1780 . . . . . . . . . . . . . . . .
20. FirstDraft of the proposed treaty, 1775 . . . . . . . . .
zr. Eighteenth century practice in India relating to signing,
sealing and ratification of treaties . . . . . . . . . . . .

22. Letters of SadashivDinkar and Mahadji Scindia, 17th Novem-
ber, 1779 . . . . . . . . . . . . . . . . . . . . . . .
23. Portuguese officia1text of the 4th May, 1779, containing the
"treaty" in Portuguese and Marathi languages, under the
signature and seal of Camara, the Portuguese Viceroy at Goa
24. Extract from Elphinstone's History of India, 1841 . . . . .
25. Proclamation made by Elphinstone on behalf of British
Government, 15th December, 1818. . . . . . . . . . . .
26. Bombay Saranjam Rules of 1898 and 1901 . . . . . . . .

27. Decision in DaulatraoMalojirao v. Provinco ejBombay before
the High Court of Bombay, 1947. . . . . . . . . . . . .x COS'TESTS - TABLE: DES MATIÈRIIS

Page
28. Decision inRamchaladra v. Venkatavao before the High Court
of Bombay, 1882. ................... 382

29. Decision inTheSecretaryofState v.Luxmibai before the Privy
Council, 1922 ..................... 394
30. Decision in The Secretaryof Statev.Girjabai before the Privy
Council, 1927 ..................... 400
31. Extract on Watan, from Dandekar, "The Law of Land
Tenures", 1912 .................... 409

32. Governor General's instructions to Elphinstone, 14th July,
1818 ......................... 417
33. Bombay Land Revenue code 1879,S.88, S. 89and Schedule F 418
34. Decision in Raghojirao v. Lakshtnanrao before the Privy
Council, 1911-1912. .................. 420
35. Decision in Shekh Sultan Sani v. Shekh Ajwzodin before the .
Privy Council, 1891 .................. 43 1

36. Decision in the BarodaSavaniam case, before the High Court
of Bombay, 1928. ................... 444
37. Extract from G. D. Patel's "The Indian Land Problem and
Legislation", 1954 ................... 464
38. Opinions of SirThomas Munro on the Jagir Tenure .... 466

39. Grant of villages in Saranjam to the East India Company,
their subsequent attachment and the rernoval of that attach-
ment, 1756-1784 ...............--... 470
40. Extracts from Dandekar, "The Law of Land Tenures", 19x2 473
41. Sorne instances of cession of territory madebp the Marathas
and the use of words "cession in perpetuity" and "cession of
sovereignty" ..................... 479
42. Translation made by the Government of India of the text
contained in the photocopy of the document at Annex NO. 26
to the Portuguese Reply ................ 484

43. Translation made by the Government of India of the text
contained in'the photocopy of the document at Annex NO. 33
to the Portuguese Reply ................ 486
44 Translation made by the Government of India of the text
contained in the photocopy of the document at Annex NO. 34
to the Portuguese Reply ................. 488
45. Translation made by the Government of India of the state-
ment found on the last page of the photocopies of the docu-
ments at Annexes Nos. 3j to 38 to the Portuguese Reply . . 4go
46. Translation made by the Government of India of the text of
the document at Annex No. 38 to the Portuguese Reply . . 491

47. Letters from the Governor of Daman to the Portuguese Envoy
ai the Maratha Court, Narayan Vithal Goraksh ...... 492
48. Dastaks (permits or passes) issued by the Maratha Gover~i-
ment. ........................ 499 XI

Page
49. Translation made by the Government of India of the text of
the photocopy of the document at Annex No. 40 tothe Portu-
guese Reply. .....................

50. Translation made by the Government of India of the text of
the photocopy of the document at Annex No. 42 to the Portu-
guese Reply ......................
gr. Translation made by the'~overnment of India of the text of
the photocopy of the document at Annex No. 43 tothe Portu-
guese Reply ......................
52. Translation made by the Government of India of the text of
the photocopy of the document at Annex No. 44 to the Portu-
guese Reply ......................

- British perd
53. Correspondence concerning Article XVIII of the Treaty of
1878 between the Government of Bombay and the Govern-
ment of Portuguese India, 1890-189 ...........

54. Despatches concerning negotiations for the Treaty of 1878
frorn the British hlinister in Lisbon, Mr. Morier, to the Secre-
tary of State for Foreign Affairsin London, dated 8th an17th
December, 1876 ....................
55. Correspondence concerning despatch of Maratha records
relating to Concan and Gujerat up to 1818 from Poona to
Bombay, Dccember, 1818. ...............
56. Example of document, known as "Rahadari Dastak", in the
nature of a passport giving exemption from payment of zakat,
1808-1809. ......................

57. Correspondence, reIating to excise arrangements in Portuguese
India between the Governments of Bombay and India and
the Portuguese authorities, September, 1913 to JuIy, 1918 .
58. Correspondence, relating to the proposed cession of territory
to the Portuguese Government at Daman, between the Col-
lector of Surat and the Government of Bombay, 2nd June-
July 1860. ......................
59. Letter, relating to srnuggling of rnhowra Flowers into British
territory from the Government of Bombay tothe Government
of India, 27th February, 1901 ..............

60. Correspondence, relating to the construction of the road
between Daman and Vapi station, between the British and
Yortuguese authorities, 1862-1865 ............
61. Correspondence, relating to the repair of the road between
Daman and Vapi, between the British and Portuguese author-
ities, September-November, 1876. ...........-
62. Correspondence, relating to the construction of the road frorn
Vapi to Dadra and Nagar Aveli, between the British and
Portuguese authorities, October 1899-December, rgoz ... Page
63. Correspondence, relating to the construction of the road from
British India into Goa by way of the Tinnai Ghat, between the
British and Portuguese authorities, 1859 .........
569
64. Letter concerning neglected condition of the Portuguese
portion ofthe Tinnai Ghat road from the Government of Bom-
bay to the Governor General of Portuguese India, 10th Decem-
ber, 1881 .......................

65. Correspondence, relating to the improvement of the road
between Karwar and Marrnagoa, between the British and
Portuguese authorities, 1891-1898 ............
66. Correspondence, relating to a proposed British subsidy for
the Portuguese portion of the road between Karwar and Mar-
magoa, 1915-191 6..................

67. Correspondence, relating to the proposkd Portuguese exten-
sion of the road from Gorbari to Kerdi across British territory,
between the Portuguese and British authorities,1936. ...
68. Correspondence, relating to reciprocal concessions for export
and import of local produce from Nagar Aveli and British
territory, between the British and Portuguese authorities,
1944-1945 ......................

69. Letter from the British Vice Consul in Marmagoa relating to
procedure for goods passing from Daman to the enclaves, 24th
May, 1946 ......................

70. Corresponderice, relating to Rule 7A of the Indian Arms
RuIes, r879, between the British and Portuguese authorities,
September to November, 1879. ........-....
71. Correspondence, relating to the cancellation of the above Rule
7A between Rritish authorities, 26th June-29th September,
1894. ........................

72. Correspondence, relating to the revision of the Arms Rules
between British authorities, 1908 ............
73. Correspondence, relating tothe grant of licensesforthe import
of ammunition from Goa into Bombay, between the applicants
and the British authorities,May-June, 1894 ........

74. Correspondence, relating to thegrant of licences for the import
and esport of sulphur between the Portuguese and British
Authorities, August-September, 1913 ...........
75. Correspondence, relating to the grant of a licence for import
into Bombay from Goa for repairs ofa 12-bore gun, between
the Portuguese and British authorities, July-September, 1913

76. Correspondence, relating to the concession regarding locally
produced food grains and resultant smuggling, between the
Indian and Portuguese authorities, June 1952 to July, 1953 COXTESTS - TABLE DES MATIÈKES XII1

Page
77. Correspondence, relating to the special indulgence for transit
granted to the Governor of Daman, between the Indian and
Portuguese authorities, June-August, 1950 ........ 615

78. Correspondence, relating to the cancellation of the embargo
on the import of salt into Indian territory, between the Indian
and Portuguese authorities, July to December, 1949 .... 616
79. Correspondence, relating to the construction of culverts at
Lavacha on the road between Daman and the enclaves, be-
tween the British, Indian and Portugueseauthorities, January
1941 tot November, 1954 ................ GIS
80. Correspondence, relating to the refusa1 of permission to instal
a telephone line on Indian territory between Dadra and
Daman, between the Portuguese and Indian authorities, 1952
625
81. Correspondence, relating to application for permission for
armed men to pass through Indian territory by the Portuguese
authorities to theIndian authorities, April1948 to ApriI1949 630
82. Letter to the Rritish Consul, Nova Goa, from the Collecter of
Salt Revenue, Bombay, 13th June, 1941 ......... 635

83. Letter to the Portuguese chief of 'Cabinet, Kova Goa, from
the British Consul, Nova Goa, enclosing specimen permit,
zSth June, 1941 .................... 636
84. Letter, and translation thereof, to the British Consul, Nova
Goa, from the Portuguese Chief of Cabinet, Nova Goa, 2nd
July, 1941 ...................... 638
85. (1) Letter tothe Under Secretary to the Government of India,
External Affairs Department, frorn the British Consul,

Nova Goa, enclosing specimen permit, 27th March, 1942 639
(2)Letter to the Rritish Consul, Nova Goa, from the Under
Secretary to the Government of India, External Affairs
Department, 5th June, 1942 ............. 642
86. Letter to the British Consul, Nova Goa, from the Under
Secretary to the Government of India, External Affairs
Department, 5th January, 1943 ............. 643

87. Letter, and translation thereof, to the British Consul, Nova
Goa, from the Portuguese Chief of Cabinet, Nova Goa, 12th
january, 1943. .................... 643
88. Letter to the Under Secretary to the Government of India,
External Affairs Department, from the British Consul, Nova
Goa, 17th February, 1945. ............... 644

89. (1) Letter to the British Consul, Nova Goa, from the Under
Secretary to the Government of India, External Affairs
Department, 19th March, 1945 ............ 645
(2) Letter to the Portuguese Chief of Cabinet, Nova Goa, from
the British Consul, Nova Goa, 27th March, 1945 .... 645
go. Letter, and translation thereof, to the British Consul, Nova
Goa, from the Portuguese Chief of Cabinet, Nova Goa, 29th
March, 1945. ..................... 646XIV CONTESTS - TABLE DES MATI~RES

Page
91. (1) Express letter to the Indian Consul General, Goa, from
the Indian Ministry of External Affairs, 12th March1949 647
(2) Letter to the Portuguese Chjef of Cabinet, Nova Goa,
from the Indian Consul General, Goa, 29th March, 1949
[See A~nex E No. 47, Vol. II, $fi.366-3671

92. Letter, and translation thereof, to the Indian Consul General,
Goa, from the Portuguese Chief of Cabinet, Goa, 12th April,
1949 ......................... 648

93. (1) Express letter to the Indian Consul General, Goa, from the
Indian Ministry of External Affairs, 29th June1949 . . 650
(2)Eetter to the Portuguese Chief of Cabinet, Goa, from the
Indian Consul General, Goa, 17th January, 1950 fSee
Anitex E No. 49, Vol. II, fip.348-3691

94. (1) Express letter to the Passport Officer, Bombay, from the
Indian Consul General, Goa, 2nd January, rggr .... 651
(2) Letter to the Inspector of Police, Castle Rock, from the
Indian Consul General, Goa, 18th January, 1951 .... 651
(3) Letter to the Passport OfficerBombay, from the Indian
Consul General, Goa, 20th January, 19j1 ....... 652
(4) "Guia" and application form for visa ofJudge Augusto
Raul de Seabra, 18th Decernber, 1950. ........ 652
(5) Letter to the Portuguese Chief of Cabinet, Goa, frorn the
Indian Consul General, Goa, 30th January, 1951 ....
654
(6)Letter to the Indian Afinistry of External Affairs, from the
Indian Consul General, Goa, 9th June, 1952 ...... 655
gj. (1) Letter from Deputy Inspector General of Police, Bombay,
to Inspector General of Police, Poona, 14th May, 1952 . 656

(2) Letter from Inspector General of Police, Poona, to the
Secretary to the Government of Bombay, rgth May, 1952 656
(3) Letter from Chief Secretary to the GovernmenofBombay,
to the Ministryof External Affairs, 3rd June1952 ... 657
96. Letters concerning the issue of visas, in FormsA and B be-
tween the Governor of Daman and the Chief Secretary to the
Government of Bombay, January, 1954 ......... 658

97. Instructjons concerning the issue of permits to Portuguese
officials, from the Passport Officer of the GovernmentBom-
bay to the Collector and District Magistrate of Surat, 13th
May, 1954 ...................... 659
98. Letter authorizing appointment of additional DistrictMagis-
trate, Surat, from the Chief Secretary to the Governmerit of
Bombay to the District Magistrate, Surat, 10th June, 1954 661

99. Note concerning exaggerated accounts by Portuguese Govern-
ment of happenings inDadra and Nagar Aveli from the Zndian
Ministry of External Affairs to the Legation of Portugal in
India, 11th August, 1954 ................ 662 xv

Page
IOO. Certificate of tfie Chief ofArrny Staff and Summary of the
disposition of Indian Military Unitin JuIy alid ilugust1954 663
101. Letter from the District Superintendent of Police, Surat, to
the Chief Secretary of the Government of Bombay, 13th May,
1954 .........................

102. Notes concerning incidents involving Captain Romba, Portu-
guese Commissioner ofPoIice, Goa,from the Indian Jlinistry
of External Affairs to the Portuguese Legation in India, 1953
103. Correspondence concerning broadcasts from the 12th July,
to the 15th August, 1954, bettveen the Joint Secretary to
the Government of India, hlinistry of External Affairs and the
ilirector General, Al1India Radio, 19th and 27th September,
1958 .........................

104. Note concerning the expulsion of the Portuguese police of
Dadra, from the Portuguese Legation in India to the Indian
Ministry of External Affairs, 12th August,1954 ......

Ioj. Statements reported in newspapers by Captain Fidalgo, the
former administrator of Dadra, and Nagar Aveli ......
106. Note concerning captain Fidalgo's arriva1 in Bombay from
the Portuguese Legation in India to the Indian hfinistry of
Exîernal Affairs, 14th iiugust,1954 ............

107 Note, concerning payment of expenses incurred by the Bom-
hay Government in respect of Portuguese police officers and
personnel, from the Portnguese Legation in India tothe Indian
Ministry of External Affairs,28th June, 1955 .......
108. Reports from Indian police authorities, Bombay, concerning
arriva1 of perçons frorn Dadra and other Portuguese villages,
Au~us~, 1954 .....................

109. Letter granting permission for Mrs. Fidalgo to stay one month
in Bombay, from the Indian Ninistry of External Affairs to
the Secretary of the Government of Bombay, 11th August,
1954.. .......................

rro. Correspondence, relating to the compIiance with 1ndian.pass-
port regulations by the Portuguese police, between the Indian
authorities and the Portuguese Consulate GeneraI, Bombay,
August-September, 1954 ...............-
III. Note from the Portuguese Legation in India to the Indian
Ministry of External Affairs, 8th August, 1954 [See Annex 5
to Obsevvations, Vol.1, $p. 656-6581

112. Note from the Indian Ministry of External Affairs to the
Portuguese Legation in India, 10th August, 1954[SeeAnnex IO
to Observations, Vol.1, #p. 670-671~7
113. Note from the Indian Ministi-y of External Affairs to the
Portuguese Legation in India, 14th August,1954 [SeeAnnex II
BoObservations, Vol. 1,.+p. 672-6741 Page
114. Note from the Indian Ministry of External Affairs to the
Portuguese Legation in India, 19th August,1954[See Annex 12
to Observations, Vol. 1,$p. 675-6761
115. Observations in answer to Annex Ito the Portuguese Obser-
vations of August, 1957, and Annex 195 to the Portuguese
Reply ........................ 692
116. Letter from Mr. G. Mascarenhas concerning treatment of his
brother, F. Mascarenhas, to the iîlinistry of External Affairs,
.17th August, 1953 ................... 779

117. Report of the Administration of Dadra and Nagar Aveli . . 781
Resolutionç of the people of Dadra and Nagar Aveli .... 821
118. Communique of the Minister of Foreign Affairs Lisbon, 3rd
J~ly, 1954 ...................... 936
119. Extracts from the Hindu, Madras, 1st July, 1954, and the
Bombay Chronicle, Bombay, 14th August, 1954 ...... 937

120. Extract from "Livre Orange" published intranslation by the
Netherlands National Press, September, 1916 ....... 940 PART 1

APPLTCATION INSTITUTING PROCEEDINGS
AND PLEADINGS

(continzced)

PREMIÈRE PARTIE

1

REQUÊTE INTRODUCTIVE D'INSTANCE

ET MÉMOIRES
(sz6Etite)SECTION B.-PLEADINGS
(continued) 6. REJOINDER OF THE GOVERNMENTOF INDIA

INTRODUCTION

The Government of India, in yaragraphs 3 and 50 of the Counter-
Memorial and in communications to the Court with respect to
time-limits fixed for the delivery of pleadings, has previously
underlined the fact that in the hfemorial the Portuc"uese Govern-
ment refrained toa very large extent from placing before the Court
the evidence in Portuguese archives relative to the clairn which it
had put forward in its Application. Portugal's failure to annex to
her Memorial a large part of the relevant historica1 evidence was
the more remarkable in that her claim is essentially a historical
claim, and the burden of proving the historical facts manifestly
rested upon her. At any rate, the unusual procedure adopted by
Portugal had the result that it was left to the Government of India
to take the initiative in laying the historical evidence before the
Court in the Counter-Mernorial and that it uras only in the Reply
that the Government of India was able to see for the first time a
more or less full formulation of Portugal's contentions and evidence
in regard to the historical facts. Unfortunately, Portugal'presen-
tation and interpretation of the evidenceinthe Reply is soselective

and tendentiouç on al1 the matters relevant to the Porturnese
clairn, that the Governrnent of India was cornpelled to ask for
additional tirne to check and examine the evidence presented by
Portugal and now finds it necessary to review the historical facts
at considerable Iength in the present Rejoinder. For the same
reason the Government of India finds it necessary to annex to the
present Rejoinder a considerable number of additional documents
supplementing and confiming the evidence which it annexed to
the Counter-Mernorial.

2.Among the documents annexed to this Rejoinder will be
found a facsimile of the Portuguese text of the4th May 1779, of the
alleged Portuguese-Maratha treaty of 1779 (Indian Annex F.
No. 23.) This text was not produced by the Portuguese Govern-
ment. In fact,the Portuguese Government denies in the Reply that
the Rlaratha version which was described by the Government of
India as the Portuguese envoy's translation in Marathi of the
Portuguese text of the 4th May, 1779,ever existed or ever came to
the knowledge of the Portuguese Government. This Marathi ver-
sion, which contains the description of the intended Maratha grant
to the Portuguese asJagi~, is now found tobe an integral part of
the Portuguese text of the 4th May, 1779, and bears the signature
of Camara, the Portuguese Viceroy. As is stated in paragraph 962 REJOINDER OF INDIA (II59)

of the Rejoinder the conclusion is inevitable that this document
exists in Portuguese archives and has been deliberately withheld
by the Portuguese Government. In this connection it will be recalled
that in paragraph 13 of its letter of the 10th November 1956 the
Government of India stated that the Portuguese Government had
rehed in the Mernorial on certain documents, which purported to

be translations in Portuguese from alleged Marathi originals, and
other documents which were extracts from registers in the Portu-
guese language asserting the existence of alleged Marathi docu-
ments. The Government of India requested the Portuguese Govern-
ment to produce the originals of the documents which were alleged
to exist. The Portuguese Government did not respond to this
request. In its letter of the 31st October,1958 n paragraph 4,the
Government of India referred again to this request and added that
several Annexes to the Portuguese Reply, which were stated to be
Maratha documents were in fact found to be aileged translations
in the Portuguese language of alleged Maratha documents. In its
letter of the 6th November, 1958, addressed to the Court, the
Portuguese Government stated that the Marathi originals of these
documents were not in its possession. The Agent of the Portuguese
Government stated in paragraph 7 of that letter:

"As regards paragraph 4 ofthe said letterof the 31~t October,
1958, I have to Say: (a) that the photographic copies 1 had the
honour of lodging with the Court,do in fact include photographic
theiReply specificallmentionedofinnparagraph 4; (b) but that the
Government of Portugal is notin the possession of the Marathi
originals of the other documents therein cited,but consider the
latter to be entirely trustworthy."

The Government of India would, at this stage, merely wish to
draw the attention of the Court to the statement of the Portuguese
Government that the hfaratha originals of the documents in ques-
tion are not to be found in Portuguese archives and are not in the
possession of the Portuguese Government.

3. In paragraphs 3 to 9 of the Reply the Portuguese Government
professes to findsome difficulty in understanding India's contentions
in support of the Fifth Preliminary Objection and invites the
Government of India to clarify the subject-matter of the disagree-
ment between the Parties with respect to the submission based
on the two paragraphs of Article 38 of the Statute of the Court.
The Government of India does not really think that this submission
can give rise to any doubts but it will respond to the Portuguese
Government's request for clarificationby furnishing the further
explanations contained in the immediately folIowing paragraphs.

4. India's Fifth Preliminary Objection, asthe Court will recall,
is that the present dispute is one which relates to a question which
by international Iaw falls exclusively within India's jurisdiction REJOINDER OF INDIA (II 59)
3
and for that reason is a dispute which is not covered by India's
acceptance of the Court's jurisdiction under the Optional CIause.
India has framed her argument in support of this Objection in
more than one way. One argument is that the subject-matter of

the dispute-the transit of persons and goods across Indian ter-
ritory-is a matter which in principIe falls by international law
exclusively within India's jurisdiction, and that, in the absence of
clear proof of an express grant to Portugal of rights of transit by
the territorial sovereign or of its specific consent to the exercise
by Portugal of rights of transit, the dispute falls outside the scope
of India's acceptance of the Optional Clause. Another argument is
that the Portuguese claim does not find a basis in a legal rule
derived from any of the sources of international law which Article 38
of the Statute authorizes the Court to apply, and therefore, ex

Izypofhesi,the dispute is one concerning a question which, by inter-
national law, fdls exclusively within India's jurisdiction.A further
consequence is that, as the Portuguese claim does not have any
basis in the sources of law mentioned in Article 38 of the Statute,
the dispute is not a "legal dispute" falling within any of the cate-
gories of legal dispute listed in the Optional Clause and for that
reason also is ex hyfiodhesi a dispute concerning a question which
by international law falls exclusively within India's jurisdiction.
Portugal, whiIe disputing the correctness ofthe foregoingarguments,
does not appear to encounter any difficulty in understanding them.
It is India's fourth way of putting her case on this Preliminary

Objection which Portugal professes to find difficulty in appreciating.

5. India's fourth argument is that the claim formulated by Portu-
gal is by its very nature not justiciable by reference only to the
sources of law which the Court is authorized to apply under para-
graph I of ArticIe 38 of the Statute, but could only be given effect if
recourse were had tothe exceptional power of the Court-for which
the express agreement of the Parties is required-to decide a case
ex aequo et bono under paragraph 2 of that Article; and that the
subject-matter of the claim not being justiciable under the ordinary
jurisdiction of the Court to decidc cases in accordance with inter-
national law, the dispute is again ex hyfiothesi one concerning a

question which, by international law, falls exclusively within India's
jurisdiction. Portugal observes that she is unable to see any basis
for this argument; she has never invoked paragraph 2 of Article 38;
there is no agreement between the Parties for the application of that
paragraph and, in consequence, no question in the prcsent case of
abandoning the field of law in favour of that of "etluity" or "ex-
pedicncy"; she is mereIy asking the Court to discharge its judicial
function, i.e. to declare the law. Portugal then goes on in effect to
say that the only question in the case is,whether her claim to rights
of transit is, or is not, well founded having regard to the sources of
international law enumerated in paragraph I of ArticIe 38. ' 4 REJOINDER OF INDIA (II 59)
6. Portugal's observations miss the point of India's argument
with reference to paragraph 2 of Article 38. There is, of course, no
question of any agreement between the Parties thatthe Court should

hbe empowered to decide the case ex aequo et bono or of Portugal
having in terms invoked the powers of the Court under paragraph z
or of the Court abandoning in the present case the field of law in
favour of that of "equity" or "expediency". India is in fuI1agree-
ment with Portugal on these points. The disagreement between the
Parties relates to the questionwhether the rights claimed by Portu-
gal are, or are not, capable of application by the Court by reference
to its ordinary powers under paragraph I of Article 38. Portugal
simply asks the Court to assume that her claim is justiciable under
paragraph I. India, on the other hand, maintains that the vague
clairn formulated by Portugal to abstract rights of transit across

India's territory isincapable of any applicatioby the Court, without
either the Parties agreeing upon, or the Court drawing up, a con-
crete scheme to regulate the exercise of the alleged rights; that the
Parties have not made aiiy such agreement, and the Court is not
invested with any power to legislate forthe Parties in this way
under paragraph I of Article 38 and could only exercise such a
function if specially invested by the Parties to decide the case ex
aequo el bono under paragraph 2 of that Article; that, as the rightç
which are the subject-matter of the Portuguese claim are not such
as can be given effect under rules derived from the ordinary sources
of international law and can only be given effect with the specific

agreement in one form or another of the Government of India, the
dispute is clearly one concerning a question which by international
law falls exclusively within India's jurisdiction.

7. In short, the disagreement between the Parties centres upon
the justiciability or otherwise of the Portuguese claim by reference
to the ordinary sources of international law laid downin paragraph I
of Article 38. That Portugal is not unaware of the true character of
India's argument on this point seems clear from the close attention
which she gives in Part I of the Reply, especially in paragraphs

20-24, to India's contentions in regard to the vague and ill-defined
nature of the Portuguese claim. So far as India can discern, the only
red response which Portugal rnakes to India's ex aequo et bon0argu-
ment is the one found in paragraph 24 of the Reply, namely, that it
is not exceptional for international law to recognise rights which
are so flexible that they "may even be regarded as extremely
vague". This proposition, when made with reference to the passage
of foreign armed troopç and police across a State's territory, is so
startling that it can hardly be regarded as a serious answer to
India's argument concerning the vagueness of Portugal's claim.
The Government of India wi11,however, comment further on this

proposition in Part II of the present Rejoinder. 8. The Government of India notes in paragraph 2 of the Reply
thatthe Portuguese Government, inorder to Save useless repetition,
is reserving its further arguments concerning India's Sixth Objection
ratione teminporisuntil the oral hearings. The same course will
therefore be followed by the Government of India.
The present Kejoinder is divided into five Parts:-

Part I. The Historicsl Facts .
Part II. The Rights Claimed by Portugal

Part III. The Law Applicable .to the Portuguese Claim
Part IV. The Alleged Portuguese Right of Transit is not exer-
cisable in the Circumstances of the Insurrection

Part V. The Conclusions

g. In paragraph 6 of the Counter-hlemorial the Government of
India underlined the fact that the case submitted by Portugal to
the Court concerns, and only concerns, Portugal's claim to alleged
rights of transit hetween Daman and the enclaves and between the
enclaves themselves. It stressed that the allegation in paragraph 57

of the Mernorial that "India failed to observe its international
obligations towards Portugal by tolerating the organisation on its
territory of the armed expeditions which were directed against the
Portuguese enclaves" raises an issue which is quite different from
the issue submitted to the Court in the Application. It further
pointed out that in the Preliminary Objection it had formally
reserved its rights tobject to any attempt by Portugal to introduce
into the present case any claim not distinctly raised in the Applica-
tion. Some of the arguments which Portugal has advanced in the
Reply, in regard to events which are alleged to have occurred prior
to the insurrection in the enclaves, make it necessary for the Govern-
ment of India to draw attention once again in this Rejoinder to the
clear position which it has taken up concerning the scope of the
case submitted to the Court.

10. In the Reply, in paragraphs 274-290 and again in its submis-
sion in paragraph 406, the Portuguese Government has carried its
accusations in regard to India's alleged responsibility with respect to
the insurrection a good deal farther than she did in the Memorial.
She now accuses India not ofmere tolerance-not of mere lack of due
diligence-but of active participation ina Goan plan to capture the
enclaves. If Portugal had realIy believed that India had actively
participated in bringing about the insurrection, it is astonishing
that she did not make India's international responsibility in the
matter the subject of a claim in her Application. It is no less
astonishing that in her Nemorial she complained only of Indiahaving "tolerated" the organization on Indian territory of the
"expeditions" which entered the enclaves. Be thnt as it may, the
claim submitted to the Court in the Application was a claim to
certain rights of transit, and to nothing else, and the Portuguese
Government is not entitledat this stage of the case, to introduce
new complaints of an alleged international responsibility resting

upon India in regard to the so-called invasion of the enclaves. The
Government of India will be as anxious in this Rejoinder to refute
the Portuguese allegation of its active participation in the insur-
rection as itwas in the Counter-Memorial to refute the allegation
that it "tolerated" on Indian territory the organization of the
so-called invasion of the enclaves. But the Government of India
must again; and even more emphatically, reserve its right to object
to the introduction into the case of completely new issues of India's
alleged international responsibility. REJOINDER OF INDIA (II 59)

Part 1
THE HISTORICAL FACTS

THE MARATHP AERIOD

The Backgrozmd to Portz~gz~ese-1Marath?nzegotiafionsJorn treaty of
friendshi9 and alliance and the mission of the PorLzlgliese envoy,

ivarayan Vithnl Dhunze ia 1775

II. In paragraph II of the Memoriai the Portuguese Government
sta tedin connection with 'the alleged "treaty of 1779" :
"This Treaty was preceded by $rotacted negotiationl which
rverecarried on on the Portuguese side, by a Luso-Indian, Narana
(or Narena) Sinai Dumo by name-also known as Narana Vithal
Dumo or Narana Kau Vital.
A nzcmberof pestions remainea pending betueefzPortugal and the
Marhatta Empire, following the conclusionof the Treaty of Raia of
1739 by virtue of which certain territoriehad been ceded by the
Portuguese to the Marhattas, namely, the territory of Basseiand
a portion of theformer territory of Damao (which constituted its
North Province). Negofiations were o$ened to settle these questions.
They related $articzilarlyto tretztrlo Portugal of the territoriesof
theNorth Province1,which had been ceded in 1739, or failing such
return,the acquisition of other territorias compensation."

The Portuguese Government contended in these words that cer-
tain territorial matters were left open by the treaty of 1739, that
the question of the restoration of the former Portuguese "Province
of the North" was the subject of negotiations with the Marathas
opened on the Portuguese side by their envoy, Narayan Vithal
Dhume; and that the "treaty of 1779" resulted froni such nego-
tiations.

12. In paragraph 37 of its Repiy the Portuguese Government dis-
closed its purpose in giving an account of the "Historic Antecedents
of the Treaty of 1779": "the historical frarnework in which this
Treaty \vas concluded" provided, according to the Portuguese
Government, "an accurate interpretation of the said Treaty".

13- At paragraphs 59 and 60 of its Counter-Mernorial the Govern-
ment of India set out the correct facts relating to the antecedents
and background of Narayan Vithal Dhurne's mission to the Naratha
Court. The Government of India annexed the texts of the treaties
of 1739, 1740 and 1741 (at Indian Annex E. No. 2 and C. No. 32)
and demonstrated that no territorial questions had been left open

Italisuppliedby the Portuguese Government.8 REJOINUER OF INDIA (II59)
by thetreaty of 1739,or by the treaties o1740and 1741 .he treaty
of 1739 resulted from a military defeat inflicted by the Marathas on
the Portuguese and it was not and could not have been in the
contemplation of the Parties to make territorial transfcrsto the
benefit of the Portuguese. The treaty of 1740 settled in a final

manner the relations of the Marathas and the Portuguese and
provided for a grant which was actually made under the treaty of
1741. (See Counter-Memorial, paragraph 59. Indian Annex E. NO. 2
and Indian Annex C. No. 32.) Tlie Government of India pointed out
there that therc was no connection between tlie treaties of 1739,
1740 and 1741, and the alleged "treaty of 1779" and that the
Portuguese envoy Narayan Vithal Dhume uTas deputed to the
Poona Court for the ostensible purpose of resolving the conflict of
the Portuguese and filaratha fleets on the Indian Seas and for
obtaining from the Marathas compensation for capture or destruc-
tion of Portuguese vessels.

14. At paragraph 47 of the Reply, however, the Portuguese
Government reassert their contention that the subject rnatter of
negotiations which were started by the Portuguese Envoy at the
Maratha Court was the restoration to Portugal of its old "Province
of the North" and that the "treaty of1779" was the result andfruit
of such negotiations. The Government of India submits that there
is no evidence whatever in support of the Portuguese contention
The Portuguese Government have not bcen able to produce any
document to show that Uhurne did in fact discuss the question of the
restoration of the "Province of the North" with the alarathas nor
have they-shown what was the Maratha reaction to a claim of this
nature.

15. The Government of India will now proceed to demonstrate
the following points and at the same time deal with the relevant
paragraphs in the Portuguese Reply:
I. The treaties of 1739,1740 and 1741 had no relationship to the
negotiations started by Dhume in 1775. No territorial questions
were left open by these treaties.

2. Portugal had no territorialclaims against the Marathas.
Under a later treaty of 1760 Portugal expressly gave up al1clairns
against the Marathas.
3. The Portuguese Sovereign gave clear instructions to his
oficers in India not even to contemplate the recovery of the old
"Province of the North" or to take up an aggressive attitude against

the Marathas.
4. The question of the restoration of the "Province of the North"
did not form the subject matter of Dhume's negotiations with the
Marathas from 1775 onwards. Nor did Dhume at any time so much
as mention any territorial question to the Marathas. The attitude
of the Maratkas in the matter of Portuguese presence in India was well-known not only to Dhiime but also to the Portuguesc Govern-
ment in Goa and in Lisbon.

5. The grant of rights of collection of revenue in villages yielding
annuol revenue only of Rs. 12000 could not be terrned restoration
of the old "Province of the North" or compensa.tion for the old
"Province of the North".
6. The villages in which revenue rights were granted by the
ma rat ha^ to the Portuguese in 1783 and 1785 as the result of
Dhume's mission were not in fact situated in the old "Province of
the North" and had never belonged to the Portuguese at any
period of time.

I. The Treaties of 1739, 1740 and 1741 lzad na relationship to tlze
negotiations startedby Dhz~me irt1775 No territorial questions
were leftopen by these Treaties.

16. At paragraph 59of its Counter-Mernorial the Government of

India made the following points: '
I. The Portuguese Government did not annex to its Mernorial
the texts of the treaties of1739, 1740 and 1741 citedby it in para-
graphç 9 and 11 of its Jfemorial.
2. The texts of the treaties disclose clearly that no territorial
questions were left open by the treaty of 1739 as alleged by the

Portuguese Government .
3. The treaty of 1739 resulted from a military defeat inflicted
by the hlarathas on the Portuguese and it was not and could not
have been in the contemplation of the Parties to make territorial
transfers to the benefit of the Portuguese.
4. The treaty of 1740 provided for a grant ; this grant was made
under the treaty of 1741.

5. The treaty of 1779 was in no way related to the treaties of
1739, 1740 and 1741. Neither in the negotiations nor in the text
of the "treaty of 1779" was there a reference to the earlier treaties.
17. As regards the non-production of the texts of the treaties of
1739,1740 and 1741 with its hlemorial, the Portuguese Government
stated in a footnote to paragraph 39 of its Reply that "it did not

feel it necessary to append it to the Annexes because it has no
relationship to the bases of the action and in order not to increase
beyond reasonable need the scope of the documentation joined to
its file." It went on to add: "The Government of India ...inserted
this Treaty as its Annex E. No. 2. Since the versions which it
furnished thereof are incomplete, the Portuguese Government now
reproduces it in full at Annex 3 to their Reply." However, if the
two Annexes (Indian Annex E. No. 2 and Portuguese Reply Annex IO REJOINDER OF INDIA (II59)

Xo. 3) arc compared it emerges that lvhereas the Government of
India appended al1 the three documents which constituted the
treaty of 1739, the Portuguese Government not only did not

improve on that documentation but on the cotitrary produced
only two documents and failed to produce the "Second Document
of 27th April, 1739" l.This document is the Convention signed by
the Portuguese plenipotentiaries under which Convention Portugal
was to pay the hlarathas the war indemnity of seven lacs of rupees
(Rs. 700,ooo). The Government of India respectfully invites the
attention of the Court to the three documents at Indian Annex E.

No, 2.These documents show that the treaty of 1739was the result
of a war between the Portuguese and the Marathas in which the
Portuguese suffered a humiliating defeat. No territorial questions
were left open in the treaty of 1739, nor "as it, nor could it have
been, the intention of the Parties to provide for a future territorial
disposition to the benefit or advantage of the vanquished Party.

rS. -4t yaragrapli 37 of itç Reply the ~ortu~uese Government
expresses its intention "to correct the erroneous version submitted
on this subject by the Government of India in its Counter-Memorial

(paras. 59-64)". It begins this so-called "correction" by complaining
that the Marathas coveted territory which "legitimately" belonged
to Portugal, described in a grand fashion as the "Province of the
North", and by apologizing for the defeat of the Portuguese at the
hands of the hlarathas "due to the help of favourable circun-istances
which it would be useless to outline". It thus becomes necessary
for the Government of India to give some account of the circum-

stances which resulted in the treaty of 1739.
xg. Of the places and territories on the Western Coast of India

which were seized by Portugal in the 16th century, the SO-called
"Province of the North" was a part of the Maratha homeland.
In the 17th century the Marathas organizcd themseives and
established a national state. By the beginning of the 18th century
they had fought back their main enemy, the hloghuls, and turned
towards the liberation of the rernaining parts of their country.

zo. In 1737 an open conflict broke out between the Portuguese
and the Marathas. One Maratlia army attacked Portuguese strong-
holds in the north and another invaded Goa in the south. In the
north the Marathas took the island of Salsette2 with Thana and
other forts, the province of Daman with its forts, and the renowned

fortress of Bassein and its dependent territory and other places,

l The Government of India wouldliketo remark that inthe"Boletim do In-
stiiulo Vascoda Gama", Volume II,which contains the study by Pissurlencar
"Po~lugzaesee Maralhas".and which is soheavily relied upon by the Portuguese
consisteofthree documentsorparts.at pages 72 to76 that the treaty of 1739
The island nortof Bombay which js not to be confused witthe district of
Salsettein Goa. al1of which constituted the Portuguese "Province of the NorthJJ. In
the south they invaded Goa and took the province of SaIsette,
Bardez and Ponda and the fort of hlargao and reached the gates of
the capital1. The Portuguese sued for peace. In ApriI, 1739, the

Maratha and Portuguese Generals met at Raia (in the province of
Salsette and away from the theatre of war in the north) and con-
cludcd an agreement-the "treaty of Kaia". (Thefortress of Bassein
in the north capitulated to the Marathas only on the 5th May, 1739,
about a fortnight after the conclusion of the agreement). The
agreement was concluded in three parts. First, as regards the war

in the north, the hlarathas agreed to the cessation of the hostilities
on the delivery to them of the fortress of Bassein together with its
territory anci posts. In return the Alarathas were to restore to the
Portuguese the port of Daman, its territory and posts, and to with-
draw their forces from that territory. However, it was stipulated:
"But should fighting have taken place between the two parties
before information of this agreement reaches the north then itis

left entirely to the Rao to adhere (or not) to this 'agreement."
(Indian Annex E. No. 2, Part 1 (r), II,p. 249.)

21. Secondly, as regards the south, the Portuguese undertook to

yay tirar indemnity of seven lakhs of rupees (Rç. ~,OO,OOO i),instal-
ments of z lakhs, 3 lakhs and z lakhs, for the withdrawal of the
Maratha armies from Salsette and Bardez. (Indian Annex E. No. z
Part 1 (2) at II, p. 249). In a third document the territory of Ponda
was declared to belong to the hlarathas; the Marathas undertook to
restore to the Portuguese the province of Salsette and Bardez and
to evacuate their troops subject to the payment to them "every

year" of 40 pcr cent. of the revenue. (Indian hnnex E. No. 2,Part I
(3)) 11,P. 250.)

22. The treaty of 1739 was concluded away from the theatre of

war in the north. Before the news of treaty of Raia could reach the
leader of the military campaign in the north, Chirriaji Appa, the
Peshwa's brother, he had assaulted and taken the Portuguese
fortress of Bassein together with several other places.

' .4naccount of the waand the details ofMaratha acquisitiand the I'ortugiiese
losses will be found in Uanvers, "Portuguese iIndia", London 1894,Volume II.
Of the Portuguese lassesasthe result of the war Danvers \mites at pag412:
"The government of the Viceroy was thus ~duced to tlie island of Goa,
which is two Ieagues iong (froNossa Senhora do Cabo to S. Thyago) and
nearly six in circumference, Chorao,Piedale, S. Estevao. and Cambarjua,
and the island of Anjediva,nineleagucs south of hlarmagos, a very small
island, simply heldtoprevent any pirates settlinthere."
A more detailed account isfound in V. G. Dighe, "Peshwa Baji Rao I and the
Maralha Expansion". Bombay, 1944,at page 154-190.
The Waratha Ruler.12 REJOIKDER OF 1KT)I.I (1159)
23. Under the terms of thetreaty of 1739 the Marathas were free

to impose fresh conditions of peace and this they intended to do l.
In their extreme peril the Portuguese requested the English to
intercede on thcir behaIf. The English Governor of Bombay,
Stephen Law, sent one Captain James Inchbird to the Marathas
to negotiate the peace on behalf of the Portuguese and to dissuade

the Ilarathas from continuing thc hostilities. Captain Inchbird
found the Marathas in an intractable mood. "The Marathas talked
as if Ilaman and Goa were already theirs". "They despise with
great indignation and were rnerry upon the offcrs made to them of
what they had already conquered and u7ere in their possession"

(Indian Annex F. No. 1). Upon receiving a report from Captain
Inchbird Stephen Law, the Governor of Bombay, wrote to the
Viceroy of Goa :

"'Tis needless informing your Excellency of the Waughtiness of
the Morattas, who in Discourse with the Captain frequently ex-
pressed their Resolution to enter Goa, as then by the Koots being
cut off,the Branches would fa11of course, and nothing but the
want of money (which there was a Prospect of being soon possessed
of) had retarded the execution of their Design." (Indian Annex F.
No. 2).

24. With great difficulty the English were able to make the Nara-
thas agree to less onerous conditions of peace. Under the treaty of
1740, which was the result of these negotiations, the Marathas
retained their conquest of the "Province of the North" and returned
to the Portuguese the provinces of Salçette and Bardez in the south

(Articles I and 2). The Narathas were also to retain the province
of Ponda and other territories taken by them in the south (Article
3). The Portuguese, while retaining in the north the for'tsof Daman
and St. Jerome 2,were also to receive from the Marathas a grant of
lands and villages adjacent to "Lodhe Daman", that is Upper

Daman, for the maintenance of theçe forts (Article 9). The Portu-
guese also undertook several other obligations, in particular the
obligation to render al1kind of help to the Marathas in their war
against the Angria (Article IO).

25. The text of the treaty of 1740 \vil1show clearly that al1 the
territorial questions between the Portuguese and the Marathas
were settled under it. The only provision which required a grant
from the Marathas \vas containcd in Article 9 which reads:

ln paragraph 40 of its Ileply the Portuguese Government admits that the
it quotedwethe textrsof theetreaiyofl1739oto show that under that treaty the
rictorious party had the rightnccept orreject its terms. However, in the same
varagraph 40, the Poitiigiiese Governmenseems to resent the fnct ththe Jla-
pathas exercised their right under the treand it seems to imply that the Marat-
has went back on theiword given at Raia. Nothiiig coubcfurther froni the triitii.
Corrupted in Marathi as "Sau Jatanc".
Articleg inthe text of the treaty1740given atIndisn Annex E. So.2,Part2,
II, p.252,corresponds tci Artic2in thetext producedby the Portuguese Govern-
ment at -4nnes 4 to the Portugiiese Reply. REJOINDER OF INDIA (II 59) I3

"The forts ofDaman and Sau Jatane alsoknownas LodheDaman
belongto the Firangee. They willbe retainedby the Firangee. They
wilInot be molested by the Sarkar. It is agreed to grant a pargana
towards the maintenance of the two forts. AccordingIy the Sarkar
willgrant Pargana Neher in Prant Daman. There are forts belonging
be retained for the forts; in exchangethe Sarkar wgiveIandsandll
villages to Lodhe Daman. An agent on behalf of the Sarkar and
another on behalf of the Firangee will fplaces contiguous to the
forts to be kept by the Sarkarand the places to be granted in ex-
change." (Indian Annex E. No. 2, Part II, II, 252.)

26. Accordingly, under the treaty of 1740 the Marathas agreed to
make to the Portuguese a grant in Pargana Neher which was not
to include the Maratha forts and surrounding lands, instead of
. which some other lands contiguous to Upper Daman were to be
selected and granted.

27. Under the treaty of 1741 the grant was made. The agents of
both Parties having selected and rneasured the lands in question,
the Marathas gave to the Portuguese 9 viIlages from Pargana Neher
and II from Pargana Khaladi Pawadi. (See Annex 6 to the Portu-
guese Reply.)

28. It will thus be seen that neither the treaty of 1739 ,or the
treaty of 1740, nor the treaty of 1741 left open any territorial
question which was to be determined at a Iater date. Under the
treaty of 1739 the Marathas agreed to restore Sdsette and Bardez
to the Portuguese and withdraw their army from that territory on
condition of payment of a war indemnity and the yearly tribute
of 40 per cent. of the revenue. The treaty of 1740gave to the Mara-
tas the Portuguese "Province of the North" and provided forgrant
of land adjacent to the fortof Daman and St. Jeronimo. This grant
was made under the treaty of 1741. There was nothing left to be
settled at a later date.
29. Itwill be noticed in passing that by agreeing to pay to the

Marathas the yearly tnbute of 40 percent. of the revenues under the
treaty of Raia of 1739 (Indian Annex E. Mo. z, Part 1 (3), at II,
p. 250) the Portuguese clearly placed thernselves in an inferior and
suborclinate position to the Marathas. Furthermore, under Article 6
of the treaty of 1741 the Marathas imposed on the Portuguese the
obligation to give them 50 % of certain of the customs duties levied
in Daman. (See Annex 6 to the Portuguese Reply.) The result of
the treaties was that Portuguese rule in North Konkan was anni-
hilated and the Portuguese were subjected to Maratha tax.
30. The Government of India would like to point to two promi-
nent errors in the narrative of the Portuguese Government. At para-
graph 39 of the Reply the Portuguese Governrnent stated that by
the treaty of 1739 "Portugal ceded to the Maratha Empire the

town of Bassein and its jurisdiction" and that the Marathas under-
3I4 REJOINDER OF INDIA (11 59)

took "to recognize Portuguese sovereignty over Daman". None of
the documents which are said to constitute the treaty of 1739
support the above assertions of the Portuguese Govemment. The
First Document of 25th April 1739 which related to the North
(Indian Annex E. No. z, Part 1 (I),at II,p. 249) spoke of "deli-
very", not of cession or recognition of sovereignty; it was an armi-
stice arrangement between military commanders and did not
incorporate notions of cession or recognition of sovereignty.
Furthermore, under the treaty of 1739 the arrangements were
purely temporary. It was stated: "But should fighting have taken
place between the two parties before information of this agreement
reaches the north then it is left entirely to the Rao l to adhere
(or not) to this agreement." Secondly,at paragraph 42 and 43 of the
Reply the Portuguese Government states that the treaties of I74C
and 1741 provided for "an exchange of villages" and "a reciprocal
transfer of sovereignty". There is nothing in the two treaties to

support this assertion of the Portuguese Government. The two
treaties provided for a grant one way from the Marathas to the
Portuguese, and there was no exchange or transfer between the
Marathas and the Portuguese.

2. Portugalhad no territorialclaimsagainsttheMarafhas. Underthe
later treaty of1760 Portugal expressly gave up all her claims
againsttheMarathas.
3, The Port~gueseSoverez'ga grne clearirnsbrztcta'ozhis represeni-
atives in India not even to contemPEale the recoveryof the old
Province O/ the North or botake .up an aggressiveattitude against
theMamthas.

31. In paragraph 45 of itsReply the Portuguese Government
states that it was the "policy" of the Portuguese Government after
the conclusion of the treaties of 1739-1741, to make an attempt to
obtain the recovery of the territories of the old "Province of
North". In proof of this assertion the Portuguese Government
refers to "an abundant and voluminous documentation concerning

the evolution of this policy". It appendç extracts from this "vo-
luminous documentation" at Annexes 7 to 17. In footnote 3 to
the same paragraph the Portuguese Government describes these
documents as "sufficient to show that the recuperation of the
fortified towns of the North and their respective Parganas was the
Eeit-motivof the Portuguese Policy 2 in India in the decade which
foilowed the Treaty of Punem of 1740 and 1741".
32. ItwilI be noticed that the Portuguese Government have care-
fully chosen the word "policy" and have not stated that the
Portuguese Government had or asserted "a claim" to its lost

The MarathaRuler.
2 Our italics. REJOINPER OF INDIA (II59)
I5
territories. Tndeed, as is absolutely clear the treaties of 1739-1741
dealt with and confirmed the loss of Portuguese territories in
favour of the Marathas and did not recognize any "claim" of
Portugal to those territories. The treaties of 1739-1741constitute a
surrender on the part of Portugal of any "claim" to the territories
in question.

33. Consequently, any intention of Portugal to reconquer its lost
territories"manu militari (ee Portuguese Reply, paragraph 45)
or its hope "that the accidents of timing would offer çomeopportune
situationJJ is irrelevant. Nor can Portugal cite in her favour the fact
that by her action immediately after the conclusion of the treaties
of 1739 to 1741, she dishonoured them in a most flagrant fashion.

34. Under article 3 of the text ofthe treaty of 1740which has been
given at Annex 4 to the Portuguese Reply, Portugal undertook
"to refrain from committing any hostilities in the entire jurisdiction
of Bassein, Salsette, and Daman, Belapur, Urna (Caranja), Rovo-
ddanda (Chaul), and Corla (Chaul Hillock)". Under this article
Portugal had solemnly pledged not to commit hostilities against
the Marathas in respect of the temtories lost by her under the
treaty, namely, the oId "Province of North". Article 4 stated:
"Likewise the Portuguese will not commit any act of hostility
against our [Maratha] conquests made in Phonda, Zarnbolim,

Panchemal, Saundem and Bidnur, nor against those which we rnay
take in future."
35. Despite these pledges Portugal did in fact commence hostili-
ties in respect of its former possessions adjacent to Goa. It is a
historical fact that in 1741 a new Viceroy arrived in Goa with a
strong reinforcement of Portuguese troops and he lost no time in
rnaking war on the Marathas l.Thereafter, territories in the South,
adjacent to Goa, were the subject of continuous armed confiict

between the Portuguese on the one hand and the Marathas and
their allies on the other.
It is strange that Portugal having given specific pledges in the
treaties of 1739-1741 and having flagrantly repudiated them
immediately after their conclusion, the Portuguese Government
should claim in the Mernorial, and repeat the claim in the Reply
that the treaties of 1739-1741 had left some territorial questions
outstanding and that the alleged treaty of 1779 was based on the
earlier treaties of 1739-41 and was intended to settle outstanding
questions left open by those earlier treaties.

36. Furthermore, the Portuguese Government haskept completely
çilent about the treaty of 1760. This treaty between the Portu-
guese and the Marathas provides a break in the period between the
treaties of1739-41 and the alleged treaty of 1779. In the treaty of

See Danvers"The Povtuguesin India", Volume II, p. 416.I6 REJOINDER OF IKDIA (II59)
1760 Portugal expressly undertook "to forget completely any pre-

vious claim". (Indian Annex F. No. 3.)
37. The intention and the "policy" of Portugal to reconquer her
lost territories or to put forward a "claim" in 1779 would have been
in complete contradiction of her undertalungs in the past treaties.
The Rilarathas on their part had placed entire faith on the solemn
assurances of the Portuguese not to commit, even indirectly, any

hostilities against them. The Marathas also put faith in article IO
of the treaty of 1740 which obliged the Portuguese to assist the
Marathas against the Angria. (See Indian Annex E. NO. 2, Part 2,
11, p.252, and paragraph 24 above.) Thus in 1755 the Maratha ruler,
Balaji Baji Rao, commonly known as Nana, wrote tu the Portu-
guese Viceroy, the Count of Alva, complaining of Portuguese
assistance to the Angria and calling on him to desist from it. (Indian
Annex F. No. 4.) The Portuguese Viceroy denied having given
assistance to the Angria and protested his friendship with the
Maratha Ruler. (Indian Annex F. No. 5.)The Portuguese Secretary

of State also gave his assurances tothe Peshwa in the same connec-
tion. (Indian Annex F. No. 6.) However, it is a historical fact that
in 1756, the Portuguese Viceroy entered into an engagement with
the Angria to assist hirn with troops in a war he was engaged in
against the Peshwa. See Danvers "The Portz4guese in India", London
1894, Volume II, page 431, where it reads:
"On the 5th November, the Viceroy entered into an engagement

. then engaged in with Balagi Bagi Rao,h 5thetAngna undertaking tos
pay those men out of his treasury at the rate they would have been
paid by the Portuguese Covernment. It would, however, appear
that Tullagi Angria failed to fulfil certain of the stipulated con-
ditions, whereupon the Portuguese commander withdrew his men,
and retired to Goa. TullagiAngria complained of having been thus
deserted in the face of his enemieç, but the Viceroy declared that
the commander had committed no act worthy of punishment,
inasmuch as he had received special instructions to see that al1the
stipulations agreed upon were duIy carried out."

38. Furthermore, quite apart from the solemn pledges given by
Portugal, it is difficult to see how Portugal's hopes, ambitions,
designs or policies could be of any relevance in the face of the deter-
mination of the Marathas to put an end to Portuguese presence in

India. In paragraph 23 above the attitude of the Marathas as
conveyed by Captain Inchbird to the English Governor of Bombay
and by the Governor of Bombay to Portugiiese Viceroy has already
been referred to. The Portuguese historian, Alexander Lobato,
confirms this. Writing of the negotiations for the conclusion of the

l The Portuguese Sovereign himself adrnitted1765 that the Count of Alva
Maratha "so contrary to my Royal Orders, as well as to my Religious Intentions".
See IndianAnnex F. No.7. REJOIKDER OF INDIA (II59) I7

treaty of 1740 he states in his book, "Fz~ndamentosda Presenca de
Portuguesa na India" :
"The Maratha rejected al1the counter-proposals, determined not
ta cede 'more than one praganai' nasmuch as he stated, his inten-
tion was "tu dgpriveus tutallyfrom our dominions in India."

39. Even as regards the alleged Portuguese "policy" to recover
the old "Province of the North", there are documents which
demonstrate the despondency of the Portuguese Government, their
lack of interest and unwillingness to make any attempt to retrieve
their lost territories from the Marathas. The Portuguese Sovereign
gave strict instructions to his Viceroy in Goa not even to contem-

plate the recovery of the lost territories and forbade him to take
up an aggressive attitude against the Marathas. Thus in 1761 the
Portuguese Secretary of State conveyed the Portuguese Sovereign's
instructions to the Viceroy in Goa, the Count of Ega:
"His Majesty has approved of your plan in the spirit of the said
first instructions with which you left this Court and of the principles
which you have wellobserved in the above mentioned msnner, that
is, of seeking an alliance of the State with the Maratha or commonly
known asNana, because it will be certainly profitable to mainiain
it with al1caution dictated by prudence, aslong as it can bemain-
tained. Towards this end you should seek al1 means which are
practicable and decorous. For this purpose itwould appear conven-
ient that you should maintain with the same Nana a persona1and
close and friendly correspondence.
His Majesty has approved entirely the said instructions carried
under the above mentioned title by the said Jacques Phelippe de
Landreset considering it thoughtfully written and in everything
conforming to his Royal Order, as long as they are directed tawards
the maintenance, without any aim of future conquests, notevenof the
Island O/ Salcete or any other Northern Ttwitory; becausethe said
Master again reiteratesto you that hedoes not zeiantabsolutelyany
extensionilt his dominions but vathevand only in thetradeand shifi-
ping towards which Ae will .indue cofarsetake stefisas time permits."
(Indian Annex F. No. 8)

The above instructions of the Partuguese Sovereign contain a
clear expression of Portuguese "policy" at the highest level of the
Portuguese Government. Briefly stated it was that no attempt was
to be made, direct or indirect, to recover any territories from the
Marathas.

40. In 1762 the Viceroy of Goa acknowledged the clear instruc-
tions of his Sovereign. This acknowIedgement is found at Annex 16
to the Portuguese Reply. However, the Portuguese Government, for
reasons best known to it, has omitted from the printed Annex
the part which is rnost relevant to this question, The part which has
been omitted in the Portuguese Annex reads as follows: .

l Esmeraldo,IssueSo. 3,1954, apage 13r
Our italics.18 REJOINDER OF INDIA (II 59)

of my departure for India, ordered me thatyItshould endeavour to
make efforts for the preservation of peace, promotion of trade,
spread of the Gospel,the good administration of justice, policy with
European nations and for establishing good relations with the
neighbouring Chieftains, and that 1 should not entertain ideas
either of conquests or restorations, aslong as the same Master did
not decide othenvisein due course ...
You tell me in the same letter that H. Majesty was pleased to
approve the instructions with which 1 sent Lt. Col. Jacques Filipe
de Landreset to the Court of Punem finding that those instructions
were in accordance with the Royal Order, as long as he went for
the purpose of preservation, without any other objective of future
conquest, nor even of the conquest of the Island of Salcete, or of
any other land of the North, because the said Master does nat
absolutely desire the extension of the dominions, but only of com-
merce andshipping,and you stress in the next parctgraphsthe matter
which is put down in such specific terms and which relate to the
same end ..."(PortugueseReply, Photostat Copyof Annex 16 l.)

In this letter the Viceroy rendered an apology and explanation
for his past conduct and undertook in future to abide by his
Sovereign's instructions not to entertain designs on the dominions
of the Marathas.

41. In its pleadings the Portuguese Government proceeds as if
Portugal had a "claim" to the territories which the Marathas ac-
quired in 1739 by title of conquest and cession. It is interesting to
find that this was the attitude maintained by the Portuguese in
1781 and that the absurdity and hoilowness of the Portuguese
"claim" was effectively exposed at that time by the British in

Bombay. At paragraph 102 of itç Reply the Portuguese Govern-
ment stated that in 1780the Portuguese Viceroy in Goa forwarded
a "strong protest" to the Bombay Government and pointed out
that "Portugal had never deviated from the idea of restoring its
sovereignty over the territones of the Province of the North which
the filarathas occupied by force without just cause of war".At Annex
27 the Portuguese Government set out the text of the "strong
protest". In that document the Portuguese Viceroy stated that
territories constituting its "Province of the North" had belonged to
Portugal for two centuries, that although for 40 years the Marathas

had "without just cause of war, invaded and occupied through
violence some places and villages that the State possessed in the
North, usurping them by force and by the strength of arms",
Portugal had not lost her "powers and rights that she had on al1

1 X translationof the partomitted by the PortugueseGovernment. in the
printed Annex 16to its RepIy has been carried out by the Government af India
and willbe found at Annex F. No9. REJOINDER OF INDIA (II59) I9
the said villages, places and territories". The Portuguese Viceroy

put forward the claim of Portugal in the following words:
"It is nevertheless unquestionable that the Crown of Portugal
has not lost the powers and the rights that she had and has on dl
the said villages, places and territories, though she is at present
deprived oftheir possession; for, according to positive and incontest-
able law, sovereignty can be preserved by force of will alone and
the Crown has always reserved its nght to the said territories, haç
never abandoned the intention to restore them nor ever ceases, at
any tirne, to take al1possiblesteps to incorporate them again under
its sovereignty, to regain possessionand to unite them toits domain."
It will be observed that the Portugueçe Viceroy took no account

of, nor did he mention to the Bombay Government, the treaties of
1739, 1740 and 1741 under which Portugal had solemnly ceded
these territories to the Marathas.
42. The Portuguese Governrnent, however, did not find it conve-
nient to produce the reply which was received by the Portuguese
Viceroy from the Government of Bombay. The Government of

India will let the letter from the Council of Bombay answer the
argument. of the Portuguese Government that Portugal had a
"claim" tothe territories lost by her to the Marathas. The Council
of Bombay wrote to the Portuguese Viceroy:
"...we find a difficuIty in treating seriously or with regular
arguments a position so contrary to reason and received rnaxims
asthe existence of a right of sovereignty in your nation to terntories
dismembered from its dominions almost half a century, or that a
regard on Our part to such a supposed right should prevent the
English from carrying the war into such part of the Mharatta
dominions as they may find most convenient or conducive to their
success..."
"The Portuguese acquired most of their territories in India by
conquest and force of arrnsIn the sarne rnanner they were deprived
of what they term the Province of the North, and their nght conse-
quently expired on the same principle that it originated..."
(Indian Annex F. No. IO.)

The rejection by the Council of Bombay of the Portuguese "strong
protest" in such terms yrovoked the Portuguese Sovereign to
rebuke her Viceroy in no uncertain manner. The Portuguese
Secretary of State wrote to the Viceroy :
"Her Majesty has been shown your letter ...it goes without
saying that, after having lost the above-mentioned cities and
territoriesof Thana, the Island of Salsette and Bassein, and the
Maratha being in possession of the sarne for over thirty or forty
years, when the British made their conquest, we have no right to
blarne the said British for having done so, and the reply given by
them to your protest is based on such solidgrounds that they cannot
be challenged. The only thing we must feel more keenly, in the.cir-
cumstances, is the fact that the State should have been reduced to2O REJOINDER OF INDIA (II 59)
such a deplorable plight thatthe only weaponsand forcesthat we
resort toshould consist ofuselessprotestwhich only provokeEaugh-
derl amidst those against whom they are directed ..."
(Indian Annex F. No. II.)

43. The documents produced by the Portuguese Government at
Annexes No. 7 to 17 to the Reply, which are intended to demon-
strate that Portugal never gave up her hopes, ambitions andattempts
to recover her former territories, are not only of littIe or no rele-

vance to the Case, but they themselves prove that the Portuguese
Sovereigns were aware of the futility of attempting to regain their
lost temtories, and that their representatives in India often dis-
regarded the instructions given to themin this matter. They further
prove the mala fidesof the Portuguese Government at Goa and its
utter contempt for treaties entered into with the Marathas. The
Government of India will not waste the time of the Court by dealing
with these documents in detail. It will content itself with comment-
ingon them in a very brief manner.
Annex 7 sums up the entire attitude of the Portuguese Govern-
ment towards treaties with the Marathas and contains the expresi

sive words: "if it is opportune to break the treaty and to pursue
the war ...".
Annex 8 reIates not to Daman but to Thana and Bassein, both
places being about IOO miles distant from Daman. No mention is
made in that document of any desire to obtain territory contiguous
to Daman. The document demonstrates the fear of the Portuguese
Government that the undertaking of hostilities ithe North might
invite the wrath of the Marathas in the South, and it also shows the
reliance of the Portuguese Government on bnbery and corruption of
Maratha officials as instruments of policy.

Annexg likewise does not relate to territory contiguous to Dainan.
On the other hand it contains an expression of the despondency of
the Portuguese Government .
Annex IO contains an affirmation on the part of the Portuguese
authorities that the hlarathas would under no circumstances be
wiILingto part with their territory in favour of the Portuguese:

"Now stating before al1the arbitrators,1 ask them by which com-
pulsion, love or necessity, the Marathas want to give us back these
places? ...they know very well they have everything to lose in
becoming our subjects." This document confirms what has been
stated above at paragraphs 23 and 38.
Annex II purports to be an interna1 document of the hlarathas
and it illustrates again the determination of the Marathas to expel

Our italics, REJOINDER OF INDIA (II59) 2 1

the Portuguese. The Maratha Ruler is said to have instructed
his General: "..it is proper that you should remain at Bacairn at
thiç juncture, for in the presence of a prudent officer like you, the
enemy will not venture to march against that place; and in case he
does proceed there, 1 am certain that with all your courage you will
dispose of him".

Annex 12 contains the vain boast of the Viceroy of Goa that if he
were given 1500 white men and Life boats he would be able to
conquer Bassein and Thana from the Marathas. The nature of the
boast of the Portuguese Viceroy is exposed by the very last sen-

tence in the report in which he describes his grandiose plan as "an
intention which I really do not possess".
Annex 13 contains an irrelevant document and does not merit

any comment.
Annex 14 is a Ietter from the Portuguese Viceroy to the Angria.
This letter is in clear repudiation of artic10 of the treaty of 1740.

(Seeparagraph 24 and 37 above.) Under that article the Portuguese
undertook to assist the Marathas in their war against the Angria.
In his letter to the Angria the Portuguese Viceroy suggested an
attack on the Marathas and wrote: "The min of Nana1 suits both
of us as he is our common enemy".

Annex 15 contains plans of an attack by the Portuguese on the
Maratha island of Salsette, This was in repudiation of Portuguese
pledges contained in article z of the treaty of 1740, (See para-
graph 24 above.)

Annex 16 has already b~en referred to in paragraph 40 above.
Annex 17 is not relevant and merits no comment a.

44. Thus the documents in Annexes 7 to 17 to the Portuguese
Reply instead of Iending support to the assertions of the Portuguese

.Government in paragraphs 44 and 45 go only to show that the
Portuguese had no respect for their treaties with the filarathas and
in fact repudiated them; that they made attempts to gather allies
against the Marathas; that they were aware that the Marathas
would not give up their territories without an armed confict; that
they did not consider themselves able to match the military power
of the Marathas; and that their designs were concerned not with
viIIagescontiguous to Daman, but rather with the island of Salsette,

the fortresses of Thana and Bassein-about IOO miles distant
from Daman.

l Peshwa Balaji Baji Rao, the MaratRuler.
This documentrefers presurnabto theNizarn betiveen whom and theMa-
rathas a struggle existat thattime. The Portuguesehoped that the Sizam
&Tarathas in Augus1763. actual fact the Nizam was completely defbytthe22 REJOINDER OF INDIA (II 59)
4, The question of the restorationof the Province of the North did not
form the subject matter of Dhume's negotiations with the Marathas
from 1775 onwards.Nor did Dhume at any time so mztchas mention
the qzlesdionof the restoration oj the Province of the North to the
Marathas. The attitudeof the Marathas in the matter of Portuguese
firesence in India was well knozernnot only tu Dhztme but alsto

the PortugzceseGovernment in Goa and in Lisbon.

45. In paragraph 60 of its Counter-Mernorial the Government of
India set out the object of the negotiations opened by Narayan
Vithal Dhume at the Poona Court in 1774-75. At paragraphs 46
and 47 of its Reply the Portuguese Government have described
the statement of the Government of India relating to the subject
matter of Dhume's negotiations as inaccurate. They have sought to
show there that Dhume proceeded to the Poona Court not in connec-
tion with a claim for compensation for the capture or destruction
of Portuguese vessels at thehands of the Marathas but asthe result
of an "intuition" of the Portuguese Viceroy who had "a well
thought out diplomatic action which might make it possible for
the Portuguese State to accomplish the much desired recuperation
of the temtones inthe North without recourse to war". (Portuguese
Reply, paragraph 46.) In support of that assertion the Portuguese
Government has referred to documents at Annex Nos. 18, 19
and 20.

46. The Government of India is grateful for the documents which
the Portuguese Government has produced in evidence of the
remarkable "diplomatic action" undertaken by the Portuguese
Viceroy. According to the Portuguese Government the patience of
the Viceroy of Goa was rewarded when an "opportune situation"
arose after a wait of 30 years. This "opportune situation" was the
civil war which broke out in the Maratha Empire and it was the
intention of the Portuguese Viceroy to profit by this situation as
much as possible.
Annex 18 expresses the delight of the Portuguese authorities at
the news of a civil war among the Matathas: "The time a£ Our
redemption has corne ..all arein civil war".

Annex 19 which is a letter from the Portuguese Viceroy to the
Governor of Daman is a tirade against the English: "The English
of the island of Bombay, always jealous enemy to the name and
interest of our State, forgetful of the alliance andof the defence
treaties which exist between the two royal crowns of Portugal and
the Great Britain, unmindful of the duties towards and of the
sacred respect for the hospitality with which the Portuguese nation
received them in the island of Bombay". In this letter the Portuguese
Viceroy suggested to the Governor of Daman a plan for "dissim-
ulation". This plan was to prevent the Maratha territories, in par-
ticular the fortresses of Bassein and Thana, fromfalling to the British REJOINDER OF INDIA [II 59) 23

sothat the Portuguese could later recover them from the Marathas.
According to the Portuguese Viceroy "if once the English enter
there we will lose for ever the hope of getting them back". The
Governor of Daman was asked to encourage the Marathas to resist
with vigour and steadfastness the attacks of the EngIish, and he
was instructed to carry out his measures "in a secret and dissim-
ulating way".
Annex 20 is a remarkable document and the Government of
India seek the indulgence of the Court in quoting from it at some

length. This document shows that Narayan VitAal Dhzkme was
no2 sent openly as the Portuguese Envoy to the Maratha Court, but
was sent there as a spy, and that he was sent with two letters, one
addressed tothe rightfu2 Maratha Governnzentand anotherto Ihe.rebe1,
Raghoba 1 :
"2nd ..nobody should know that you have been sent by the
State with a view to pursue this measure . ..enjoin upon the said
Leandro to keep the same secretanddissimzllatingmanner 1as your-
self."
"3rd ..pay a visit to the Ministers you know as also to those
to whom you can have access tellingthem al2un#retentiously that
you have cometo these places todealwithyour afairs." '
"5th ...In the course of your first conversation with anyone of
the said Ministers find an occasion to provoke a discussion ...
on this question speak to him inthe following terms.

- "6th. That the perfidy and the execration attending the death
of Narana Rao has filled the whole of Asia and al1the parts of the
tragedy wherein Raghoba played the part of monster of wickedness
has rendered him odious and abominable in the eyesof dl the princes
and the Govemments of Asia and the nations of Europe. That only
the English in that region (i.e. Europe) who do not see wickedness
in even the most despicable person, so long as that person serves
their interests clandestinely, can agree to deal with and conclude
an alliance with the said Raghoba; that you heard people Say that
they are making an alliance with Raghoba and have promised him
help ...
"8th. That you are convinced that His Majesty prefers the cause
and justice of the Most Blessed Madho Rao Narana to the unjust
designs of Raghoba ...

"16th. Co,fisiderinthat the Asians are used to allowingthemse~ves
dificulty whateveroroppositiolallothe endyou havein view f... any

"17th. If,on the contrary, you find from the beginning and from
the first measures of your mission that the party of Raghoba 1s
stronger than that of the widow; that he has sway over some
important pIaces; that he has some powerful allies; and that there
you should not take the measures which 1 enjoin upon youf the widowin

Our italics.24 REJOINDER OF INDIA (II 59)

respect of the partyof the widow, instead immediately cross overthe
place where Raghoba is and hand over the letter whichI address to
him and speak to hina conformably to theway indicatedbelowin sub-
stancel.
"18th. That ..the great Raghoba knows very well that those
places and territories of the North belontothis Majestic State; and
that he should be convinced that this capital has aiways kept its
eye on them; that if the great Raghoba is disposed to restore thern
to it,it wibe ready to help him with its army; that the Portuguese
Nation has always considered ita most precious and invaluable
glory to help generously oppressed Princes; that, quite to the
contrary, when the English raise sorne of them,they do so only to
reduce them later ta an absolute slavery (and thus) promote their
trade and interests; that you beg of the great Raghoba not to
deliver the said placesof the North to the English; and that if he
wants the alliance and hdp of the State, he has only to indicate the
nature of the help and the terrns of the alliance; that you will
communicatethem to this Court and that you have good hope that
they will be replied to in reaçonable terms."
The abovein the s~bmissio ofnthe Government ofIndia isconclusive
and eloqzkelzlproofofthe duplici tnd double dealing indulged in by
thePortugueseGovernmentirsGoa 2.It also answers in a final manner

paragraph 48 of the Portuguese Reply in which it is stated that it
was not Portugal who took the initiative but the rival parties in the
civil war who approached the Portuguese Government for its help.
The document shows that the initiative for obtaining Portuguese
"neutrality" did not come from the Marathas. The Portuguese
Government in Goa being most anxious to profit from the dissen-
sions among the Marathas deputed Dhume to try one party and
then another. Dhume was asked to describe Raghoba as "the mon-

ster of wickedness" when parleying with the Maratha Government
at Poona, and at the same time to assure Raghoba that "the
Portuguese Nation has always considered it a most precious and
invaluable glory to help generously oppressed Princes" and would
be ready to help him with its arrny.
47. Article 17 and 18 of Dhume's instructions quoted in the

above paragraph and Annex zo to the Portuguese Reply themselves
make it quite conceivable that while assurances of neutrality were
given to the Marathas at Poona, assurances of active military help
were also given to Raghoba. Itis a historical fact that lvhile Por-
tugal parleyed with the Poona Court in a different sense it also forrned
a military alliance with Raghoba. In 1776 Raghoba wrote to his
emissary with the Portuguese, one Laxrnan Appaji, and described
the extent of his faith in the honesty, integrity and militarystrength

l Our italics.
2 Pissurlencar'"Agentesda Diplomacia na India" containsa most revealing
letter from Goraksha colleaguofDhume, who describeshow he andDhume went
to Poona in disguise, carried two letters, one addto Raghoba and another
were interrogatedyrMaratha Guards. See Indian Annex F. No.12.hoba when they REJOINDER OF INDIA (II 59) Ti

of his Portuguese allies. He descnbed his alliance with the Portu-
guese as "riding on a small horse":
"Having formed an alliance with the Firangee we propose to
make a move. But his resoiircesare poor, his strengt1sinconsider-
able, honesty is also lacking. We were nding the elephant. Now
- unfortunately we have taken to a small horse. The reason for this,
the elephant no doubt isrespectable and reliable, but on account
of an injury to the foot he cannot walk. As soon as the elephant
is up onhis feetand can walk,wewillagaingo back to the elephant."
(Indian Annex F. No. 13.)

48. It is in the light of the above that Raghoba's offer "to'cede
for ever tothe Portuguese nation the right and domination over all
the territories which have been taken from them bythe Marathas on

this coast of the North" must be seen. (See Portuguese Reply,
paragraphs 48 and 51. ) irst, Raghoba had no territories to offer;
he was a rebel in a desperate plight-his fortreçses in the old
"Province of the NorthJ' were castles in the air and existed only in
his imagination. Secondly, he did not have much faith in the Portu-
guese, did not expect much from them and was aware of their
military weakness 1.
49. Tt may be asked, if Raghoba waç able to cede to the Portu-

guese the old "Province of the North", why did not the Portuguese
Govemment, which by its own admission was most anxious to
recover its lost territories, and did not have any particular regard
for the hlaratha Government at Poona, accept his offer?
50. It is obvious that territorial offers made by a desperate rebel-
who did not have any territory to offer cannot be of any relevance in
determining whether the legitimate Government was willing to cede
or had promised to cede itç territory. At paragraph 51 of its Reply

the Portuguese Government assumes that as against the generous
terms offered by the rebel the Maratha Government at Poona must
have made an offrr of similar magnitude to induce the Portuguese
at Goa to adopt an attitude of neutrality. Nothing could be further
from truth and logic.
51. The Portuguese Government is entirely unable to show that
the Marathas ever offered to cede any territories to the Portuguese

or ever discussed with them the restoration of the "Province of the
North". Moreover, the Portuguese Government is unable to show
that the Marathaç ever required Portuguese military help or sought
it or placed any reliance on it. The text of the alleged treaty of 1779
discloses clearly that there was no question of military help from
the Portuguese, nor did it contain any offer of cession of territory
in return for such help. Under the text of the alleged treaty it was
merely required of the Portuguese not to give asylum to traitors

l Annex 24 to the PortuguesReply showsthat in place o3500well-equipped
troops,15pieces of artille5rnortdrs, et cetera, demanbydRaghoba, all that
the Portuguesecouldoffer him was"shelteinthe place ofDaman,every tirne he
asksfor itwith two hundred men only accompanyinghim".26 REJOINDER OF INDIA (II59)

(ArticleII) nor to render assistance to the enemies of the Marathas
(Article12). The desperate rebel Raghoba promised to give imagi-
nary territories to the Portuguese in return for active milite help
in the form of 3500 well-equipped troops, armament, guns and
mortars. (See paragraph 47 above, and Annex 24 to the Portuguese
Reply.) Would the proud Maratha Government of Poona have pro-

mised restoration of the "Province of the NorthJ' in return for a
mere reciprocal undertaking not to give asylum to traitors and not
to render assistance to each other's enemiesi
52. The Portuguese Government have not been able to give any
proof that Narayan Vithal Dhume did indeed cany out or was able
to carry out his alleged instructions relating to the restitution of the
"Province of the North" or that he had the courage to mention this

question to the Marathas. What transpired between the Portuguese.
Viceroy and Dhume is of little relevance. The Portuguese Govern-
ment should be able to show that in fact Dhume negotiated with
the Marathas on the basis of the restoration of the "Province of the
North". It is of no consequence if the Portuguese hopes, ambitions
and designs for the restoration of the "Province of the North" were
hidden from the Marathas and were not made the subject of
negotiations with them. Narayan Vithal Dhume considered himself
eminently successful in his mission. If his mission had been to obtain
the old "Province of the North" then by any standards he coulcl
not be said to have been successful: he did not bnng about the
restoration of any part of the old "Province of the North", nor did
he obtain equivalent compensation. In paragraph 47 of its Reply
the Portuguese Government Say that the instructions which were

given to Dhume dealt exclusively with the purpose of the recupera-
tion of the territories in the old "Province of the North" and that
there was in those instructions not the least reference to the subject
of indemnity for capture or destruction of Portuguese vessels.
However, it is a historicalfact and one which emerges clearly from
the course of the negotiations for the alleged treaty that these
negotiations were concerned not with the question of restoration of
the territories of the old "Province of the North" but with compen-
sation for the capture or destruction of Portuguese vessels.
It was with this ostensibleurpose that Dhumeentered the Maratha
Court. As a result of his representations in 1775 the Maratha
Government decided to return to the Portuguese the ship "Santa
Ana". (Indian Annex F. No. 14. ) gain in1776 a Sanad was issued
for the return of another vesse1 and this Sanad mentioned the

representations which had been made by "Narayan Vithal Dhume,
Envoy from the Firangee of Goa". (Indian Annex F, No. 15.)
53. The fact that DhumeJs actual negotiations were concerned
only with the question of compensation for loss of Portuguese *
shipping, and did not concern any representation for the return of
the "Province of the North", is clearly proved bya letter wntten by REJOINDER OF INDIA (11 59) 27
the Portuguese Viceroy to the Portuguese Secretary of State at

Lisbon in which he reported the success of Dhume's mission andthe
Maratha grant of 1783 and 1785. This letter of the 12th March,
1787, written by Governor Francisco da Cunha e Rleneses to the
Secretary of State in Lisbon, Ilartinho de Me10e Castro, reads as
follows :
"This is how the affairs stand at present, and as the said Narana
Sinai Dumo was instrumental in concluding in Punem the negotia-
tions for making up to the State the losses suffered by the latter
owing to the seizure of the frigate 'Santa Anna and S. Joaqmk', as
a compensation for which we have been given Rs. 63,000 besides
the 72 "Ilages in Pragana Nagar Aveli and duties of the Customs,
which the State took over on the aznd July, 1785 ..."
(Indian Annex F. 30. 16.)

54. Further, the fact that'the negotiations for the deged treaty
of 1779 had nothing to do with restoration of the old "Province of
the North" is borne out by many historians. As will be seen below
in the following sections, many historians, who did not have access
to the actual documents and who had no opportunity to examine
closely Portugal's titk, were deceived by Portuguese pretensions

and took it for granted that Portugal had acquired Dadra and
Nagar Aveli "by cession" from the Marathas under a valid treatyl.
But the historians were well aware of the purpose and background
of the alleged treaty of 1779. Thus in his "The Portzcguessin India",
Danvers wrote :
"On the 17th December, Dom Frederico Guilherme concluded a
treaty of peace with the Peishwa Madou Rao, in accordancewith
whick thefEeetsof the respectiîieparties werenot to attackone another
at se&,but to provide each other with any necessaries they might
require and to trade freely in their respective ports. Al1disagree-
ments between them were to be settled by arbitration, and whilst
the Portuguese bound themselves not to render assistance to the
enemies of the Peishwa, the latter agreed not to help the enemies
of Portugal. The Portuguese werenot to erect forts at Guzerat, Sant,
Cantevad, Surat, or other places belonging to Madou Rao. In
considerationof the existing friendship between the two parties, the

Peishwa agreed to hand over to the Portuguese certain villages in
forts weretobeereckedin dhem."f as. ~z,ooo,- on condition that no

In the same manner it is found in a Portuguese history book by
A. Lopes Mendes, "A India Portziguese", published by order of the
"Ministerio da Marinha" :

' In the absence of knowledge of documents relatito the alleged treaty the
though they gave the date of the "treavariously as4th Mayr779.17th Decem-nto,
ber 1779, 6th January 1780, etc.
London,1854, pages 438-39 As hasbeen seen above. the old "Province of the
North" consisted mainly of forts, fortresses and strongholds. Restofa part
of the "Provinceof the North" on condition that "no forts werebeoerectedin
them" would have been no restorationatal].28 REJOINDER OF INDIA (II59)
"By the Treaty signed with the Court ofPoona on January Fi,
1780, the King Xahu, Lord of people and treaçure of Happiness,
ceded to the Portuguese in Pragana of Nagar Aveli,situated in the
lands of Ramnagar of the jurisdiction of Bassein,a certain number
of villages,which wouldbring the rentof Rs.12000 or francs 24000
per year,inorder doidemnify forsome captures,which theMarathas
hadtakenin time o/peace." (IndianAnnexF. No. 17 l.)

55. In paragraphs 50 to 56 of its Reply the Portuguese Govern-
ment has endeavoured to reply to paragraphs 61 efseq.of the Indian
Counter-Memorial where the Government of india dealt with the
facts relating to the various drafts of the alleged treaty. The Govern-
ment of India wiildeal with these facts again in Section II below.

At this point, however, the Government of India will seek to show
the significance of the fact that none of the drafts of the alleged
treaty discloses any reference to the question of the restoration of
the "Province of the North" to the Portuguese.

56. In paragraph 50 of its Reply the Portuguese Government
admits that the draft of 1775 contained no reference to territorial
matters. In paragraph 51 the Portuguese Government admits that
the draft of 1776 contained no mention of territorial matters but
contained an offer of "twelve thousand rupees of revenue in villages
at Daman", The Government of India is also obliged to the Portu-
guese Government for the admission in paragraph 52 and Annex 25
to the Reply that the Maratha proposa1 of August, 1776 was infact
conveyed to the Portuguese Government by Narayan VithalDhume.
In August I776 al1thatthe Marathas proposed to,offer to the Portu-
guese in return for their friendship was 68,254 rupees in currency,

3,000 rupees in timber, and 12,000 rupees of annual revenue from
unspecified villages.(Indian Annex C. No. 6.)In paragraph 56 the
Portuguese Government admits that the draft of 1777 did not
mention any territorial matters, nor even a grant of revenue.

57. The Government of India submits that the question whether
the restoration of former Portuguese territories actually forrned the
subject matter of negotiations between the Portuguese and the
Marathas is to be ascertained not from the letters from the Portu-
guese Viceroy to Dhume or from Dhume to the Portuguese Vice-
roy, but from the drafts of the proposed treaty. The texts of the
drafts of the proposed treaty prove beyond a shadow of doubt that
the question of restoration of the old "Province of the North" to
the Portuguese, or equivalent compensation in the form of cession
of some other territory, was never before the Parties and was never
discussed between them at any time.

' Annex 80 to the Portuguese Replywhich isan interna1 documentof the
seizures of shipasnthe motive of an alleged "Treof Agreementoconcluded
between thetwo Governments on the 6th Janua1780." REJOINDER OF INDIA (II59)
29
58. In paragraph 52 of its Reply the Portuguese Government
refers to the doubt and uncertainty of Dhume as the result of the
Marathas having embarked on a search for the texts of "certain
conventions". Dhume urgently asked the Portuguese Viceroy to
send him "the convention of the oId peace". From the text of
Dhume's letter which hasbeen produced atAnnex 2j to the Portu-

gueçe Reply it is clear that Dhume was rendered extremely nervous
by the search of the Marathas for "some old conventions":
"1 am not, however, satisfied in view of the uncertainties result-
ing from some conventions. To verify them we are searching for
the old ones. I donot know howthese weve madeand by whonz.1 am
takingstepstofind thisout. Godis Great.May He hdp me '.And the
same Lord knows that this is for the well-being of the Stat1, on
my part, am proceeding with the work."
On the basis of the above statement of Dhume the Portuguese

Government assert at paragraph 52 :
"It can thus be inferred thathe agreement planned was consider-
ed, on both sides, asa rectificationof the capitulationsof the old
Peace 2,i.e., the Treaties of 1740 and 1741. In exchange for the
friendshi+ and the neutrality of the Portuguese State ('not to work
one against the other'), Punem agreed to amend the conditions of
peace of 1740-1741 and, specifically, to return to Portugal a part
of the territories of the old Province of the North, a part represented
by the villageslocated around Daman ofa revenue of 12,000rupees:
cede 'thesaid villagesofthe said revenue'."
59. The Portuguese Government wish the Court to believe that
Dhume had been deputed to the Poona Court to bring about
rectification ofthe treaties of 1739-41 and to obtain the restoration

of the Province of the North, when, even as regards the proposed
grant of the annual revenue of Rs. rz,ooo, Dhume was rendered
nervous by the efforts of the Marathas to find "some old conven-
tions". when he had not taken with him to Poona the texts of the
old tréaties, and when he did not even know what the old treaties
were about-"1 do not knowhow thesewere made and by whom"l.
60. Likewise, in paragraph 53 the Portuguese Government stated
that a mention of the treaties of 1739-4 is found in the preamble

of the draft of 1775. That preamble may be examined again to see
if the contentions of the Portuguese Government find any support
therg (apart from what has btkn stated above of Dhume's ignorance
of those treaties). The preamble of the draft of 1775 states:
"Previously treaty between the Firangee State and Shrirnant
Peshwa Pant Pradhan was concluded to the e#ect that they should
work in perpetualamity withoutinterruption."l

Can it be said that this was a reference to the treaties of 1739-41,
and in particular to the territorial dispositions under those treaties,
1 Our italics.
Vtalics supplied by the Portuguese Government.3O REJOINDER OF INDIA (II 59)

or to the intention of the Marathas to rectify those dispositions?
In fact thernutual obligation "to maintain perpetual amity without
interruption" is found not in the treaties of 1739-41, but in the
treaty of 1760. If, at all, the preamble of the draft of 1775referred
to any specific treaty,it referred to the treaty of 1760under which
Portugal abandoned her claim to her former territories and under-
took not to revive any disputes. (Seeparagraph 36 above.)

61. ~hus neither the draft of 1775 at Indian Annex E. No. 3 nor
Dhume's letter of 1776 at Annex No. 25 to its Reply can help the
Portuguese Government in substantiating its assertions.

62. At paragraph 57 of its Reply the Portuguese Government
speaks again of Raghoba. It says that in1778 the Marathas gave a
resounding defeat to Raghoba and made him a prisoner. It says that
this was the moment when negotiations between the Portuguese
Government at Goa and the Maratha Court at Poona reached a
successful conclusiori. It further says that at this point of time, in
1779, one year after Raghoba's final defeat and irnprisonment, the
Marathas were obliged to make a territorial concession in order to
"assure Portuguese neutrality" and to "pay for this neutrality to

which it owed its victory to a large extent". The Governrnent of
India would like to ask, first, if it could really be said that the Mara-
thas owed their victoryagainst Raghoba to the Portuguese, if Portu-
gal hadthestrengthand resources to help the Marathas, and whether
the Marathas needed Portuguese help at all? Secondly, if it stands
to reason that having given a resounding defeat to Raghoba in 1778,
the Marathas would have proceeded to promise to the Portuguese
in 1779 cession of territory and to make actual cession in 1783 and
1785? History has yet to record an instance of a proud nation,
contemptuous offoreign rule and determined to root out its presence,
ceding away, in the hour of its victory, some territory to a weak
foreign neighbour .
* * *

63. The Governrnent of India has thus demonstrated that there is
no truth in the statement in paragraph 58 of the Portuguese Reply
that .the alleged Treaty of 1779 "appears asthe crowning of a series
of a diplomatic demarches the purpose of which, right frorn the
beginning was the restoration of the Portuguese sovereignty over
at least a part of the old Province of the North; the Accord is sealed
in the form of a rectification of the onerous peace conditions which
had been imposcd upon the Portuguese by the first Treaty of Punem

of 1740".

64. The Government of India would like to draw attention to the
fact that the clairn of the Portuguese Government as presented in
its Reply is quite different from the one made in its Mernorial,narnely REJOINDER OF INDIA (II 59) 31
that the alleged territorial grant was contemplated in and arose
from the treaty of 1739. Paragraph xxof the Memorial reads:

"A number of questions remained pending between Portugal and
the Maratha empire, foliowingthe conclusionof the Treaty ofRaia
the Portuguese to the Marathas, namely, the fort of Bassein, aady
portion of the former temtory of Daman which wassituated in its
North Province. Negotiations were openedto settle these questions.
They related particularly to the return to Portugal of the territories
of the North Province whichhad been cededin 1739o ,r, failingsuch
return, to the acquisitioof other territories as compensation."

5. The grant of rights of collection of revenue in villages yielding
annual revenue onZyof Rs. 12,000 couldnot betermed restorationof
the old Province of the North or compensation for the oZdProvance
of the North.

6. The villages in which revenue rights were granted by the Marathas
to thePortuguese in 1783 and 1785 as the result Dhztme's naission
were no2in fact situatedin ihe oEdProvince of the North and had
never belonged tothe Portuguese at any fieriod of lime.

65. As has been shown in the Counter-Mernorial and will be
further referred to in this Rejoinder the subject matter of the
actual gant made by the Marathas to the Portuguese in 1783 and

1785 was the revenue of Rs. ~z,ooo to be coliected every year, while
the grant continued, from Maratha villages in Dadra and Nagar
Aveli.
66. The Portuguese old "Province of the North" was a vast terri-
tory and consisted of renowned forts, fortresses and strongholds. It
extended from Chaul 50 miles south of modern Bombay to Daman
which is about xoo miles north of Bombay and extended about
25 to 50 miles into the interior. (Annex F. No. 18.) Itsworth to

Portugal in terrns of money would have had no relation to an
annual revenue grant of Rs. 12,ooo.
67. Dadra and Nagar Aveli never formed part of Portuguese
possessions and did not belong to the old "Province of the North".
(Indian Annex C. No. 25 and Indian Annex F. No. 19.) For this
clear reason the Portuguese assertion that Dadra and Nagar Aveli
was ceded to them in restoration of their old "Province of the
North" or as compensation for the loss of the old "Province of the
North" is seen to be without reality.

68. The Portuguese Government have set out the historical ante-
cedents of the alleged treaty in order to give interpretation to its
clauses. However, instead of setiing out the policy and intentions32 REJOINDER OF INDIA (II59)
ofthe Marathas in the matter it has set out at great length the hopes,

ambitions and designs of the Portuguese Government at Goa. It is
evident that where the intentions of the parties are not ad idem it
is the intention of the grantor which must govern the transaction
and give interpretation to the grant. The Government of India has
demonstrated above that the policy and intention of the Marathas
waç not only not to cede to the Portuguese fresh territory in India
but positively to expel them from India. REJOIILDER OF INDIA (II 59) 33

The bases of negotintions for a Treaty of friendship and alliance.
Portuguese firoposals.The Portuguese Text of the 4th May 1779 in
Portuguese andMarathi Eanguages.The Maratha text of 17thDecember
1779. The iMaratha decision of 1776 tu make a grant of Saranjam to
the Portugzteseand to their Erzvoy, Narayan VithaEDhulne

69. At paragraphs 61 to 81 of the Counter-Memorialthe Govern-
ment of India gave an account in chronologicalmanner ofthe negot-
iations between the Portuguese Envoy, Narayan Vithal Dhume,
and the Maratha Officiaisat the Poona Court for the proposed treaty
and demonstrated that no treaty was finally concluded between the
Portuguese and Maratha Governments. After setting out the rele-
vant facts the Government of India summed them up in paragraph
82 as follows:
I. The treaty as proposed by the Maratlias on the 17th
December, 1779, was not approved or accepted by the Portu-
guese; the Queen of Portugal did not receive a faithful transla-
tion of the Maratha text of 17th Decernber, 1779;

z. The Portugnese text ofthe proposed treaty was not seen
or approved by the Queen of Portugal; nor waç 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 text 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 contemplated a fiscal grant ;
7. Wagh's translations of the Maratha text were incorrect
and ambiguous.

8. Wagh's translation is the text relied upon by the Portu-
guese Government .
The Government of India subniits that the above statement of
facts stands unchallenged by the Portuguese Reply. In respect of
Point 8,however, it is now found that while in the Mernorial the
Portuguese Government relied exclusively on Wagh's translation
of the alleged treaty, in the Reply it has taken into consideration
the original of theMarathi text of 17th December, 1779.
70. The Portuguese Government has deait with the above facts at
paragraphs 50to 56and 59 to 75ofits Reply. Broadly the argument REJOINUER OF INDIA (II59)
34
of the Portuguese Government falls into two parts: (1)that a valid
treaty was forrnally concluded between the Portuguese Government
and the Maratha Government in 1779 ,nd (2)that a true accord
and understanding existed between the parties, and the intentions
of the Maratha Government and the Portuguese Government were
ad idewt in respect of the grant intended to be made to the Portu-
guese Government. In support of the above argument the Portu-
guese Government has made several statements of fact which are

not supported by evidence in the file and it has given an entirely
erroneous interpretation of these facts. It is the intention of the
Government of India to re-state the correct facts relating to the
negotiations for a proposed treaty of friendship and alliance and to
show that the evidence in the file can lead only to the conclusion
that there was no treaty concluded between the Marathas and the
Portuguese in 1779 and that the intention of the Marathas was to
grant to the Portuguese a revocabIe title to the collection of reve-
nues from territory under Maratha sovereignty in a tenure known
as Saranjam or Jagir.

The DraJt of1775:

71, At par,agraph 61 of the Counter-Memorial the Government of
India statedn that the first draft of the treaty appeared to have
been drawn up in 1775 by the Portuguese Envoy, Narayan Vithal
Dhume. In support of this statement the Government of India
referred to the document at Indian Annex E. No. 3. The Govern-
ment of India stated that this draft did not contain any reference
to cession of territory or even to the grant of revenues. At para-
graph 50 of its Reply the Portuguese Government denies the attri-
bution of this draft to Narayan VithalDhume and states that there
is nothing in the text of the draft to lead to that conclusion. The
Portuguese Government asserts that thetext was drawn up by the
Maratha Government and the proposals contained in the text were
rejected for the reason:

"that the Portuguese State would only sign analliancewith the
Punem Government in exchange for territorial concessions ln the
old Province ofthe North".
In the previous section the Government of India has already
shown the Maratha attitude towards Portuguese claims to the old
"Province of the North". It will therefore refrain from making any
further comments on this aspect of the Portuguese argument.
The Portuguese Government ha5 not produced any proof in support

of itsassertion in paragraph 50 that the proposal of1775 emanated
from the Rlaratha Government. On the other hand, if regard is had
to the text of the proposa1 o1775 one is left in no doubt that it was
drawn up by a respresentative of the Portuguese Government.
(Photocopy of Indian Annex E. No. 3 andits translation at Annex F.
No. 20.) In the text the Portuguese Government of Goa is described REJOINDER OF INDIA (II 59) 35

as "Hazrat Estad", tliat is the Majestic State, and the Maratha
Ruler is described as "Shrimant Peshwa Pant Pradhan". It is a
well-known fact and one which emerges again and again from the
documents in the file that thèse were the appellations used by the
Portuguese Government and that the Maratha appellation for the
Portuguese Government of Goa was not "Hazrat Estad" but
"Firangee". The Maratha Ruler described himself not as "Shrimant

Peshwa Pant Pradhan", but as "Sarkar". The language of the
document of 1775 therefore makes it absolutely clear that it emana-
ted not from the Marathas but from the Portuguese, and since it
was in the Marathi language its author obviously was Narayan
Vithal Dhume, the Portuguese Envoy, whose mission it was to
carry on negotiations on behalf of the Portuguese Government

The Maratha .decisionof 1776 to make a grad ofSaranjam to the

Portzigueseand to Narayan Vithal Dkume :
72. At paragraph 62 of the Counter-Memorial the Government of

India referred to a Maratha document at Indian Annex C. No. 6.
This document is a resolution of the Maratha Government dated
the 24th August, 1776. This document describes the protestations of
Portuguese friendship with the Sarkarand the consequent decision
of the Maratha Government to make a revenue grant tothe Portu-
guese and to Narayan Vithal Dhume. This decision is described in
the Maratha memorandum in the following words:

"the Sarkar and the Firangee entered into friendship. Therefore
the Firangee should be assigned villages of the total revenue yield
of Rs. 15,000useful to Daman. Care should be taken that after the
assignment the authority of the Sarkar will meet with no obstruc-
tion. Accordingly, without interruption of Sarkar's authority, they
should be assigned. Imarat should not be erected in villagesso
granted. According to thisagreement be made."

-At paragraphs 51 and 52 of the Reply the Portuguese Govern-
ment admits the authenticity of this document and states that
the Maratha decision of the 24th August, 1776, was conveyed to the
Portuguese Government by Marayan Vithal Dhume in a letter of
the 26th August, 1776. This letter, which, it will be noticed, was

written only two days after the Maratha decision is given at Annex
25 of the Portuguese Reply. Narayan Vithal Dhume writes:

l While itismost improbable that some other represcntatof the Portuguese
Gor-ernmentwas responsible for drawing up this text, the relevais that this
mas a draft proposed by the PortugueseGovernnient and not by the Maratha
Government. The nature ofthe propiisals theniselves make this clear, ior example,
ArticleIof thetext required the hlarathas to show honour to the Portuguese Pleet:
"Hazrat Estad should be shown the honour which other Western Powers
extend to i".
It is hardly conceivable that such a proposition would have emanated irom the
31aratha Government.36 REJOINDER OF INDIA (II 59)
"1 have alsoobtainedRs. 12,000 revenuelmorethan what isgiven
to the State in the villagesof Daman zuitkobiigationofnot construcf-
ing bzkiEdinglsin any part of the State and of presenting to the
Most Blessedthe revenueof oneyear lhatis Rs.IZ,OOO leither in the
form of powder, bullets andartillery orinmoney."

Narayan Vithal Dhume's letter of the 26th August, 1776, shows
that his principal purpoçe in negotiating with the Marathas was to
obtain compensation for damage to the Portuguese Navy. After
stating in the third paragraph that he had been able to obtain
compensation of a sum of Rs. 66,454 for the damage to the Portu-
guese ship "Santa Anna", he proceeds in the next paragraph to

state that he had aEso obtained Rs. 12,000 of revenue. It is in the
sixth paragraph that he gives expression to his nervousness ansing
from the search conducted by Maratha Officialçfor former treaties
with the Portuguese. (At paragraphs 16 to 30 abovekhe Government
of India have already refuted the Portuguese argument that the
proposed treaty had anything to do with the earlier treaties of
1739, 1740 and 1741.) In the submission of the Government of
India, Dhume's letter, which has been produced by the Portuguese
Government, entirely supports the Indian argument that in August
1776 the Maratha Government decided to make a Saranjam grant
to the Portuguese in consideration of their friendship and a similar

grant of Rs. 3,000 to Narayan Vithal Dhume for his services to
the Maratha State. It wiil be noticed that while the Maratha docu-
ment speaks of a total grant of Rs.15,ooo-Rs. Ia,ooo for the
Portuguese and Rs. 3,000 for Narayan Vithal Dhume-Dhume
in his letter says nothing about the Saranjarn grant received by
him.
73. In paragraphs 54and 55 of the Reply the Portuguese Govern-
ment finds some difficulty in accepting the implication of the clear

words in the Maratha memorandum:
"careshould be taken that after the assignmentthe authority of the
Sarkar willmeet no obstruction.Accordingly, without interruption
of Sarkar'sauthority they should be assigned".

The Portuguese Government states that these words were not
conveyed to Dhume and therefore they could not have any value
vis-à-vis the Portuguese Government. It states that had these
words come to Dhume's knowledge he wouId have without doubt
conveyed them to the Portuguese Government. The fact, however,
isthat these wordç are found in the Maratha document, and there
is a strong presumption that Narayan VithaI Dhume who was at the
Poona Court and who was canvassing the grants in question did,
in fact,take note of all the contents of the Maratha memorandum

of the 24th August, 1776. It has been pointed out above that while
the Maratha Government had decided to make a total grant of

l Our italics. REJOINDER OF INDIA (11 59) 37

Rs. 15,000-Rs. 12,000 to the Portuguese and Rs. 3,000 to Dhume
-he informed the Portuguese only about a grant of Rs. ~z,ooo to
them. This conduct on the part of the Portuguese Envoy is in itself
sufficient to refute the Portuguese statement that

"he would certainly have informed the Viceroy thereof ashe had
informed him of al1 the other proposals concerning the planned
Agreement". l (Portuguese Reply, paragraph 54.)

74. As will be shown below in Section IV the grants of Saranjam
which were actually made by the Maratha Government in 1783 and
1785 were made in pursuance of the decision of the 24th August,
1776, This is abundantly clear from the documents reIating to the
grant. The "agreement" referred to in those documents is the above

decision, resolution or assurance of 1776. No forma1 treaty was
concluded between the Maratha Government and the Portuguese
Government on the subject of the grant of Rs. 15,000-Rs. ~z,oooto
the Portuguese and Rs. 3,000 to Narayan Vithal Dhume. Yet, the
"agreement" referred to in the Sanads relating to the grant is "an
agreement for Rs. r5,ooo". In the view of the Government of India,
Dhume's letter written two days after the decision of the 24th

August, 1776, constitutes an admission of the nature of the Saran-
jam grant made to the Portuguese Government and to him. This
letter estops the Portuguese Government from asserting that the
Portuguese Government at Goa and Narayan Vithal Dhume were
under the impression that the Maratha Government had undertaken
to cede to them in full sovereignty any of its territory. In his Ietter
Dhume makes it clear that he had "obtained Rs. 12,000of revenue".
He dso took express note of the fact that no Imarat could be con-

structed in the Maratha villages from which such revenue was to
be collected.

75. At paragraph 56 of the Reply, the Portuguese Government
referred to a letter dated 21st January, 1777, from Camara, the
Portuguese Viceroy of Goa, to a Maratha official, requesting that
the agreement reached by the Maratha Government with Dhume be
implemented. In this letter (Indian Annex E. No. 4), the Portuguese
Viceroy obviously referred to the Maratha Resolution of August,

1776, and the informal understanding then given by Maratha

l The Portuguese Government have suggested at paragrap55 an alternative
translation of the originalhi of the document at Annex C. 6.The Govern-
ment of India finds the translatsuggested by the Portuguese Government
erroneous and untenableom every point of view. The argumof the Portuguese
Government that the reservation in resof the authoritof the Sarkar coutd
reservation havinbeen conveyedPto the Portuguese Governmentbby Narayanuch
VithalDhume is also erroneous and dntenaIt is sufficiently clear from Dhume's
letter that he had only obtainrevenue of Rs.IZ,OOOand that there was no
question of cession of territory. Consequently it was not necessary for the,Marathas
to make any reservatioor to convey such reservatito the Portuguese. REJOINDER OF INDIA (II 59)
39
between the Marathas and the Portuguese and it also denies that
the~e was an accord, .understanding or agreement between the
parties as to alleged cession of territory in sovereignty.

79. At paragraph 82 (2)of the Counter-Mernorial the Government
of India stated that the Portuguese text of the proposed treaty waÇ
not seen or approved by the Queen of Portugal, nor was it accepted

or approved by the Marathas, nor did the hfarathas see a correct
translation of that text. However, the Portuguese Government
states in paragraph 64 of the Reply that the Maratha Ruler took
cognizance of the Portuguese text of the 4th May 1779.

80. At paragraph 63 the Portuguese Government adrnits that
there does not exist any document relating to the alleged treaty
which contains the seal and signature of both the Portuguese
Govcrnment and the Maratha Government. However, in spite of
this admission the Portuguese Government proceeds to assert in the
same paragraph that "it is impossible to conclude therefrom that
no accord existed between the two Governments". It argues that
there was atthat time a usage among the peoples of Asia according
to which authentic texts of treaties were exchanged between the
parties which exchange constituted a "treaty" between the parties.
In respect of the.existence of this usage the Portuguese Government
cites the example of the "treaty" with Angria. It is significant,
however, that in the 'preceding paragraph, paragraph 62 of the

Reply, the Portuguese Government admits that the "treaty"
concluded between the Portuguese State of India and the native
ruler Angria in 1778 was rejused ratification by the Portuguese
Queen in 1782 and consequently that "treaty" never came into
existence and never created legal obligations for any party. As
the Government of India pointed out at paragraph 72 ofits Counter-
Mernorial, the possibility of'the Queen of Portugal refusing to
ratify a treaty made it absolutely clear that such a treaty could not
have corne into existence or created any legal obligations unless it
obtained ratification and was signed by an authorized agent of the
Portuguese Governrnent. The very instance cited by Portugal lends
force to the Indian argument that there could have been no treaty
between the Marathas and the Portuguese Government unless
both the Maratha ruler and an authorized plenipotentiary of the
Portuguese Government put their sealand signature on the same
document. Furthermore, the Government of India would like to
state that the Portuguese assertion that there was at that time
usage in India according to which an exchange of documents
constituted a forma1 treaty between the parties is erroneous and
has no foundation. The Government of India has put together a

few instances of treaties entered into in India at that time which
show that these treaties were signed, seaIed and ratified in a proper
manner. These'treaties show that it was considered necessary that4O REJOINDER OF INDIA (II59)

the seal and signature of both the contracting parties shodd appear
on a single document (Indian Annex F. No. 21).
81. At paragraph 70 of the Counter-Mernorial the Government of
India reproduced a quotation from a letter wntten on the 1st
January, 1781, by de Sousa, the Portuguese Viceroy, to the Portu-
guese Government at Lisbon. In this letter he wrote:
"Madhav Rao, Euler of the Marathas, signed the treaty and
forwarded it to me, with the request tkat I should approveill. 1
approved it land signed itl as it seemed convenient in the public
interests of the State."

This letter shows that the text of the 17th December, 1779,
forwarded by the Maratha Ruler \vas a proposa1 and the Maratha
Ruler desired the proposa1 to be "approved". In the above men-
tioned letter the Portuguese Viceroy asserts that he had signed the
document sent by the Maratha Ruler. The fact, however, is, which
fact can also be venfied by an examination of the photocopy of the

originalMaratha document of the 17th Decernber 1779 produced by
the Portuguese Government, that de Sousa did not put his seal or
signature on the Maratha document of 17th December 1779 . his
fact is also admitted by the Portuguese Government at paragraph 65
of the Reply. It will be noticed that this very lettofthe 1st Janu-
ary 1781 from de Sousa, the Portuguese Viceroy, to the Govern-
ment at Lisbon, makes it absoIutely clear that it was necessary for
the Queen of Portugal to ratify the treaty, The Portuguese Viceroy
wrote :

"1 enclose herewith thecopy of the letter of Madhav Rao and
the treaty; of which 1 inform you in order that it being subrnitted
to Her Majesty she may decidewhat shethinks is the bel."
At paragraph 68 the Portuguese Government state: "one way or
the other the treaty was ratified by the Queen".

82. At paragraph 60the Portuguese Government seemed to imply
that in paragraphs 70, 71 and 72 of the Counter-Mernorial the

Government of India had accepted the Portuguese contention that
the Queen of Portugal:
"sirnply ratified a Portuguese translation of the original Marathi".

If paragraphs 70, 71 and 72 of the Counter-Mernorial are seen
again it will be noticed that the Government of India did not
admit that the Portuguese Queen had made any "ratification". At
paragraph 71 of the Counter-Memorial the Government of India
reproduced a'letter from the Secretary of State at Lisbon to the
Viceroy of Goa stating that he had received from him a translation
of the treaty which had been submitted to the Queen and that the

lOur italics. REJOINDER OF INDIA (II 59) 4I
Queen had found the translation to be unintelligiblel butthat in

any case she had found it fit to approve the treaty. In paragraph 72
of the Counter-Memorial the Government of India accordingly
stated that :
. "the only text of the draft treaty which was seen and approved
by the Queen of Portugal was the Portuguese translation of the
Maratha text of 17th December 1779; and that the Portuguese
text of4th May 1779111thJanuary 1780wasnot sent to her by the
Govemor of Goa, nor did she sigfi, approve or ratify thattext,or
indeed a7zyothertexl".

Indeed, the Portuguese Government appears to accept this state-
ment of fact but it proceeds to state at paragraph 68 of the Reply
that :

"the ratification of the treatby Queen D. Maria 1, the fact that
she only had cognizanceof the Portuguese translation of the Ma-
rathi originaand the questionas to whether or not thistranslation
informed the Queen fully concerning the thought of the Maratha
Govemment, are circurnstanceswhich are reIied upon by the Gov-
ernment of India entirely irrelevantly since they do not concern
the question beforeus".

and again in the same paragraph:
"one way or the other the treaty was ratified by the Queen".

Accordingly, the Government of Tndia wish to draw the attention
of the Court to the fact that the Portuguese Government asserts at

one and the same time that the Queen of Portugal ratified the
treaty "one way or the other"; that the question of ratification is
irrelevant; that the fact that the Queen approved of a rnistransla-
tion is of no consequence; and thatit does not matter at al1whether
the Queen was informed of the "thought of the Maratha Govern-
ment". The Portuguese Government seerns to ignore the fact that
there is a great divergence between the original text of the Maratha
document of 17th December 1779 and the translation carried out
by Anant Kamodi Wagh, particularly in Article 17 which is the
Article invoked by the Portuguese as their title to cession of terri-

tory in full sovereignty from the Marathas. It is a remarkable fact
and one on which the Portuguese Government haç not commented,
that the Portuguese Viceroy at Goa did not send to the Queen the
text of the 4th May, 1779 , hich was available in the Portuguese
language but sent her Wagh's mistranslation of the Maratha text of
the 17th December, 1779 . ccordingly, itemerges from these facts:

duction of a grammatical ambiguitwhich is unintelligible and requires some
efforto understand. The GovernmenofIndia have already referred ta this gram-
matical ambiguity iparagraph81of the Counter-Memorial and will retorit
again below in paragraph 93.42 REJOINDER OF INDIA (II59)
I. That it was necessaryfor the Queen of Portugal to ratify
the alleged treaty.

.. 2. That the Portuguese text of the 4th May, 1779, never
came tothe notice of the Queen of Portugal.
3, That the contents of the Maratha text ofthe 17th Decern-
ber, 1779,never came to her notice.
4. That what came to her notice and was approved by her

was a mistrançlation of the Maratha text of 17th December
1779, which mistranslation seemed to indicate that the Mara-
thas intended to part with their "dominion" over certain terri-
tories.
83. However, assuming for the sake of argument, that in order to
bring a treaty into existence it was not necessary for the Queen
of Portugal to ratify either the Portuguese text or the Maratha
text, or for the Portuguese Viceroy of Goa to fonnally approve the

Maratha text of the 17th December, 1779 ,nd that an exchange of
authentic texts could have, according to the alieged usage of the
times, brought a treaty between the parties into existence, it is
clear that no exchange of authentic texts ever took place and the
Maratha Government never received an authenticated text of the
4th May, 1779. At paragraph- 64 of the Reply the Portuguese
Government states the sequence of events as follows: '.
"this was exactly what happened in connection with the treaty of
Punem in r779-this and nothing else:-Viceroy Camara forward-
ed to the Peshwa on the 4th May 1779 a text authenticated by his
signaturewhich meant that as of that tirne, he undertook, in the
name of the Portuguese State, to fulfil the provisions of that docu-
ment.
-the Peshwa took cognizance of that text sinche stated in a letter
which he wrote to the Portuguese Viceroy on December 23rd of
that year that the treaty 'was given to (my) Sarkar by Narana
Vital'; having decided to accept it he had a text in the Marathi
language drafted, affixed his seal to it on the 17th December and
transmitted it to the Viceroy thus considering himself, as of this
time, bound vis-à-vis the Portuguese State to comply with the
provisions of that document."

and in paragraph 65 :

"from that time on the treaty was concluded since a reciprocal
undertaking existed which had been solemnly accepted.
reasonfwhy the Peshwa upon writing to the Viceroy on the ~3rdthe
December to inform him of the transmission of the Marathi text
simply asked hirn for an acknowledgement of receipt. He did not
ask hirn inany way to ratify it and toreturn it to him: he had
no reason to do so since the ratificatiotheftreaty by theGovern-
ment of Goa had already been made by the Viceroy Camara on the
4th May 1779- . ,, REJOINDER OF INDIA (II 59)
43
And that is also the reasowhy ViceroySousa when hereceived
the Maratha text was not at al1 concerned with signing it.This
text then,was not a proposa1for atreaty which was forwardedto
him for ratification; was the treaty itself with the officia1ratific-
ation givento it by the MasterofPunem. What ViceroyD. Frederico
Guilhermede Sousa didwas to sign the Portuguese version of the
4th May 1779 to endorse the undertakings agreed to in this text
by his predecessor."
In the suhmission of the Government of India the aboveaccount

is entirely inaccurate.The Portuguese Viceroy did not send any
authenticated text of the alleged treaty to the Maratha Govern-
ment. The Portuguese Government has produced no evidence
that the Maratha Government received an authenticated Portu-
guese text of the 4th May, 1779. As the Government of India will
show below, al1 that the Maratha Government received from the
Portuguese was an official proposa1 in the form of a draft in the
Marathi language which was drawn up at the same time as the
Portuguese text of the 4th May 1779 . he Government of India
will show belbw that the text it had descnbed in paragraph~ 69,
73,75 and 77 of the Counter-Memorial as "Dhume's translation" of
the Portuguese text, isnow found to be an official text sent by the
Portuguese Government to the Maratha Government as the basis of
negotiation. For its statement that the Maratha Government

received an authenticated Portuguese text of the alleged treaty
the Portuguese Government relies on a letter purported to have
been written by the Maratha Ruler on the 23rd December, 1779.
As the Government of India pointed out in paragraph 67 of the
Counter-Mernorial, thisIetter is found in the form of a translation in
the Portuguese language made by Anant Kamodi Wagh and printed
in a Portuguese "Collection ofTreaties" by Biker. The Government
of India finds it difficult to place reliance on a translation carried
out by Anant Kamodi Wagh who was responsible for a serious and
deliberate mistranslation of Article 17 of the Maratha text of
17th December, 1779. Quite apart from the unreliability of the
translation, there is nothing in that Ietter to indicate that the
Maratha Government had received .an authenticated .Portuguese
text of the 4th May 1779. Kamodi's translation speaks of:
..
"the treaty of agreementwhich was given to my Sarkar by Narana
Vital".

The words "treaty of agreement" mean no more than a draft of
a treaty. Indeed, as appears from other documents and circurn-
stances, itis clear that the Maratha Ruler did not receive any text
other than the one which was described in the Counter-Memorial as
"Dhume's translation" of the Portuguese text. It isa well-known
,historical fact that the Marathas did not have any knowledge ofthe
Portuguese language and that they could not have taken cognizance
of a text in the Portuguese language. There, is evidence to show4.1 REJOINDER OF INDIA {II59)

that the draft which was received fromthe Port~guese Government
and which wascirculated to various officialsof the Maratha Govern-
ment for their comments was in the Marathi language. From a letter
dated the 17th November, 1779 , hicha Maratha official,Mahadji
Scindia, wrote to the Maratha Miniçter Nana Phadnis, it is found
that a draft of theproposais of the Portuguese Government in the
Marathi language was being considered by these Maratha officials
(Annex F. No. 22).Furthemore, the fact that the Portuguese
officia1document of the 4th May, 1779, bearing the signature of
Camara was countersigned at Goa on the 11th January 1780 by
his successorde Sousaproves conclusivelythat at leaçt till that date
this document remained in Goaand had not been sent to the Maratha
Government at Poona. The Portuguese Government has put for-
ward no evidence that this document went to Poona after being
signed by Carnara, came back to Goa for de Sousa's counter-
signature, and was again sent to the Marathas as their "authenti-
cated copy of the Portuguese treaty". As the Government of India
willshowbelowin paragraph 96,this document never left Goa either
before or after de Sousa'scountersignature and still remainsinthe
archives of the Portuguese Government. The Government of India
to find any officia1text of the Portuguese Government resembling
the one found to exist in Portuguese archives under the signature of
Camara and de Sousa.

.84. At paragraph 69 of the Reply the Portugueçe Government
had come to the conclusion that "the Treaty was concluded on
17th December 1779" and that it is contained in two officialtextç,
an original text in the Portuguese language and an original text in
the Maratha language. Earlier, in paragraph 64 of the Reply, the
Portuguese Government states that on the4th May, 1779,the Por-
tuguese Viceroy authenticated the text of the "treaty" and sent it
to the Marathas, and that "as of that time he undertook, in the
name of the Portuguese state, to fulfil the provisions of that docu-
ment". The Portugueçe Government also states, in paragraph 65,
that "the ratificationofthe Treaty by the Government of Goa had
already been made by Viceroy Camara on the 4th May 1779"-
The Government of India finds some difficulty in reconciling the
statements of the Portuguese Government that a Treaty came into
forceonthe 4th May, 1779, and alsoon the 17th December, 1779.If,
however, the alleged treaty came into force vis-a-vis the Portu-
guese Government on the 4th May, 1779,why "as it necessary for
the Portuguese Viceroyto countersign iton the 11th January, 1780 ?
If the "treaty" came into operation on the 17th December, 1779,
why was it necessary forthe Portuguese Viceroy to seek ratification
and approval from the Queenof Portugal? From what has been sta-
ted abotreby the Government of Indiain paragraph 80 and 81, itis
obvious that a treaty could not have come into force until it had been ratified in a.proper manner by the Queen of Portugal and her
approval and ratification conveyed to the Maratha ruler. The
Queen of Portugal, in fact, did not ratify any text of the Treaty,
but merely "approved" a mistranslation of the Maratha text. This

approval was given some time in February 1782. There is no evi-
dence that the Queen's approval of the "treaty" was communicated
to the Maratha ruler. In this connection the Government of India
would refer to the letter of the Governor of Goa addressed to the
Secretary of State at Lisbon dated the 1st January, 1781 (see para-
graph 81 above). The Portuguese Viceroy de Sousa states there that
no treaty was in existence when h'esucceeded Camara as the Viceroy
at Goa. He states:
'
. "my predecessor sent Narayan Sinai Dumo, Envoy, on behalf of
the Majestic State to the Court of Poonaof Madhav Rao Pandit
Pradhan, Ruler of the Marathas in order to discuss and conchde
the negotiation of peace and interests of the State. The Envoy
had discussed the clauses but when1 asszlmed@ce the agreemed
had not yetbsen made and concEuded,"l

The above constitutes an. admission of the Portuguese Represen-
tative that when he assumed officetowards the end of the year 1779
a lreatyhad not 6een made and concEzcdedl.
85. The Government of India accordingly submits that no treaty
was finally concluded between the Marathas and the Portuguese

on the 4th -May, 1779 or the 17th December, 1779 o,r on any other
date. This is to be seen from the following facts:-
(1) There is no document which contains the signature and seal
of the two parties;
' (2) There was no ratification on the part of the Portuguese

sovereign or the Portuguese Viceroy ;
(3)T'here was no exchange of,authentic documents; and
(4) The documents in question are divergent.

86. On the last point, namely the divergence of the documents,
the Portuguese Governrnent states, in paragraph 69 of the Reply,
that the fact that the texts arenot stnctly identical does not inval-
idate the existence of a "tme accordJ' between the parties. The
Portuguese Government asserts that the divergence between the
texts does not exist to the extent that the Government of India
wishes to have the Court believe, Itasserts that it is sufficient to
compare the "two official versions in question" to find that :-

' At paragraph 59 ofthe Reply the Portuguese Government state that the
Objectiontand thathit admittedthe existenceof a treaty, in thdocument.nary
A reading of the PreliminObjection makes it quite ctear that even at that time
the Governmentof India did not accept the validity of the alleged treaty. By using
the words "keaty of 1779'' it had not admitted the existence ofcreatingty"
a legal obligationtherMarathas.
5 (a) the two texts have the same number of articles,
(b) the subject matter treated in each Article of the Portuguese
text is exactly the same as that treated in the Article bearing the
corresponding number in the Marathi text,

(c) the undertakings assumed on both sides in each Article are
exactly the same in Portuguese and Marathi texts, and
(d)the existence of discrepancies with the exception of rare
details and simple differences of words are pefectly explainable by
the difference of the structure of the two languages.

87. As the Government of India demonstrated in the Counter-
Mernonal, and will again demonstrate below, there is no truth
in the Portuguese assertion that the divergence between the texts
is such that a "treaty" could be said to exist in spite of it. The
Government of India would like to point out that the mere fact
that two proposals or drafts of a treaty are more or less identical
does not by itself constitute a Treaty between the parties. Two diffe-
rent proposals or drafts are also capable of having the same number
of Articles and the same subject matter in the Articles. The Por-
tuguese Government appears to have missed the point that it has

invoked the alleged treaty, particularly in regard to Article 17,
and it is precisely this 'Article which is found to contain vital
differences of language in each differentdocument alleged to be the
" treaty of 1779". These differences in language go to the root of
the matter, and have given rise to opposite interpretations. In the
view of the Government of India it is not possible to Say that,
in spite of these vital differences in the various documents; they
can be said to be identical. In order to demonstrate the divergence
in the text of Article 17 in the various documents in question, the
Government of India set these texts side by side at paragraph77
of the Counter-Mernorial. For the convenience of the Court,. these
documents are again set out be1ow:-

In fhePortuguesetext of 4th May 1779

"As the Majestic State has evinced the greatest friendship to-
wards the Pandit Pradhan, as proved by the Attorney, Pandit
Pradhan has agreed to make a contributionin Daman of 12,000
rupees stardin/rom this yeal through hisDaman jurisdiction by
virtue of whichhe shall specificallygive to the State the Sanad or
the confirmatory order of the villages." (Indian Annex C. No. 2.)

In theMavathatextof 17th Decernber 1779

"Narayan Vithal Dhume conveyed assurances that the Firangee
had evinced friendly sentiments towards the Sarkar and would in
1
Our italics. REJOINDER OF INDIA (II59) 47

future be more friendly. In response, it is agreed that villages
yielding revsnue of twelvetaousandrufieeswherethe aztthority of the
Sarkar is unimpeded would be assigned towards Daman from the
currentyear. The Firangeewill not raise any Imarat in the same l.
Such villages willbe specified." (Indian Annex C. No. 3.)

In Wagh's translation of the 6th January 1780 in Portuguese of the
Maratha text ofthe 17th Decernber 1779

"As the Portuguese have acted with the greatest friendship
towards this Sarkar, as proved by Naraen Vital Dumo, dich
friendship shall be maintained hencefonvard, from the current
year he shall give, namely in Daman, villages of 12,000 rupees,
without Izawingin them dominion, nor any otherhi~dranceon the
part of the Sarkar and in which the Portuguese shall not erect
buildings in accordance with the arrangement made, and the
villages shall be specifically mentioned." (Indian Antiex C.No. 4.)

In itheMaraihi version O/ the ogicialPortztguesetextof4th May 1779

"The Firangee State entertains friendly sentirrientç towards
Pandit Pradhan; the envoy conveyed assurances. Therefore it is
agreed that the Pandit Pradhan should assign towards Daman
#rom the currentyearaJagir O#therevenueofdwelvethoztsandrupees
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 and Annex F. No. 23.)

88. It will be seen from the above that, according to the Portu-
guese text of the 4th May, 1779, the Portuguese were to receive
from the Marathas "a contribution in Daman of 12,000 rzqbees

starting from this year". Under the Maratha text of the 17th Decem-
ber, 1779 "vilEagesyieZdingrevenueof 12,000 rupeeswherctheazjthority
of the Sarkar isanimpeded would be assigr~edtowards Daman from.
.thecurrent year. The Firavzgeewill not raise any Imarat in the same."'
In Wagh's mistranslation of the above Maratha text, the Marathas.
were to "give, namely in Daman, villages of Rs. ~z,ooowithout:
having in them dominion, nor any otker hiruhance, on the part O/ the
Sarkar, and in which the Portuguese shall not erect buildings".
In the text, which was descnbed by the Government of India in the

Counter-Mernorial as "Dhume's Translation ofthe Portuguese text",
and which, as will be presently shown, is a text emanating from
the Portuguese Government, "the Pandit Pradhan should assign
towards Daman from the current year a Jagir of the revenue of
twelve thousand rupees in Prant Daman".

1 Our italic..
2 Thiswas describedin the Counter-Memorialas "Dhume's translatioof the
Portuguese text".As willbe explained below this document is now fouto be
an officiPa1rtuguesedocument under the signatureof the PortugueseViceroy,.
Camara. 89. It will be seen that the texts are far from being identical
'with each other, and that there are major &ifferences in the des-
cription of the subject matter of the grant which was proposed to
be made by the Marathas to the Portuguese. Itwill-be noticed that,
in the Portuguese text, whole sentences are missing. Nothing is

to be found there regarding the restriction on the building of
"Imarat".

go. At paragraph 69 of the Reply, the Portuguese Government
argues that, in spite of the divergence, a "Treaty" and a "true
accord" could be said to exist, for the reason that one of the Articles
in the documents was sufficient to keep a "Treaty" in force by provi-
ding for the solution of differences between the parties. ThePortu-
pese Government States that Article 6 in the documents provided
for the solution of "divergences" by direct conversation and through
the mediation ofthe Envoy, Narayan VithalDhume. Article 6in
the documents, however, speaks of nosettlement of "divergences"
in the sense in which the Portuguese Government has used that
word. It does not contain aprovision for an authoritative construc-

tion of the clauses of the alleged "treatyJJ in the event of there
being a difference in the language of the documents. This is to be
seen quite clearly from the wording of Article 6 itself. In the Portu-
gueçe text ofthe 4th May 1779 A,rticle 6 reads:-

"this Treaty being concluded, should there stdl beaaltymolive of
'jealousyand discordl,the matter shallfirst be treated through the
Attorney and both parties shall reciprocally act witallsincerity".

It will be seen that there is nothing in this Article to show that it
provided for an authoritative interpretation of the clauses of the
alleged "treaty" in the event of there being vital differences in the
text of the various documents. The reference-in this Article is to
jealousy and discord, and differences of a poEiticakind, and not to
the question of the validity of the Treaty itself.

Wagh.'smistranslation of the Maratka document of17th Deceinber
1779

91. At paragraph 61 of the Reply, the Portuguese Government
refers to the staternent of the Government of India on the collusion
between the two servants of the Portuguese Government of Goa,
the Portuguese Envoy at the Maratha Court, Narayan Vithal
Dhume, and the Portuguese officia1 translator at Goa, Anant
Kamodi Wagh. At paragraph 75 of the Counter-Mernorial, the
Government of India stated :-

Our italics. REJOINDER OF INDIA (II 59) 49
"...ifthe four texts-the Portuguese text 'of.4th May r77gj
11th January 1780; the Maratha text of 17th Decernber 1779;
Wagh's transIation 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 differein 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 textof the Maratha text as a
translation of.the Portuguese text."

At paragraph 76 of the Counter-Memorial, the Government of
India stated that because of the obvious collusion between the two
servants of the Portuguese Government, the parties to the negotia-
tions had no means of knowing and did not know what was actually
contained in the texts prepared by the other party. The Maratha
Government relied on the Marathi version of the Portuguese text of
4th May, 1779, and apparently the Portuguese Viceroy never saw
a correct translation of the Maratha text of the 17th December,

1779.

92. The fact that there was collusion between Narayan Vithal
Dhume and Anant Kamodi Wagh is not a mere presumption
arising from both of them belonging to the same caste of Shenvai
Brahmins, being well-known to each other, and in the service of the
same Government ; there is evidence of a deliberate atternpt on the
part of Anant Karnodi Wagh-to distort the meaning of Article 17
of the Maratha text of 17th December 1779 by the introduction of
a'grammatical arnbiguity. The Governrnent of India will now pro-
ceed to 'demonstrate this point.

93. In his translation, Anant Kamodi Wagh rendered the provi-
sion "where the authotity of the Sarkar be unimpeded" in the
Maratha text of 17th December 1779 as "without.having in them
dominion nor any other hindrance on the part of the Sarkar". The
difference in the sense brought out by Kamodi's translation will be
seen more clearly if the two texts are again set side by side:-

Inths Maratha text of17th ~ecember 1779
"Narayan Vithal Dhume conveyed 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
yielding revenueof twelve thousand rupeeszvherethe authorityofthe
Sarkar is tsnimfiededwould 6e assigned fowa~dsDaman from the5O REJOINDER OF INDIA (II59)
current year.The Firangee wZ1Znot raise any lmarat in the sawe '.
Such villages will be specified." (Indian Annex C. No. 3.)

In Wagh's translation of the 6thJanuary 1780 2% Partugrjeseof the
Maratha text of the 17th December 1779

"As the Portuguese have acted with the greatest friendship to-
wards this Sarkar, as proved by Naraen Vital Dumo, which friend-
ship shall be maintained hencefonvard, from the current year
he shall give, namely in Daman, villages of12,000 rupees, withozcb
havingin them dominion,nor any otherhindrance on the part of the
Sarkar and in which the Portuguese shall not erect buildings in
accordance with the arrangement made, and the villages shall be
specificallymentioned." (Indian Annex C.No. 4.)
Thus Wagh, instead of settingout the Maratha intention that their
authority and jurisdiction in the villages of which revenues were to

be assigned to the Portuguese would continue unhindered, con-
veyed the impression to the Portuguese Government that the
Maratha Government had agreed to cease to have dominion in their
villages. Thus, in order to convey the right impression, instead of
rendering the Maratha phrase as "without having in them domi-
nion, nor any other hindrance on the part of the Sarkar", he should
have rendered it as "without the Portuguese having in them domi-
nion or putting any hindrance on the authority of the Sarkar". The
actual sentence in the original Portuguese language of Wagh is
ungrammatical. Article 17 in Wagh's translation in the Portuguese
language reads :-

"Como os Portugueses corresponderao corn maior demonstraGo
da amizade corn este Sarcar, provada por Naraena Vital Durno,
e que continuariioO mesmo ao diante, desde O anno corrente dara
nomeadamente em Dam20 aldeias de xz,ooo rupias Semter nellas
dominio, neln outros embaracos da parte do Sarcar, n? quaes OS
Portugueses niio levantas0 obra na forma do ajuste feito, e se60
determinadas as aldejas."

and the phrase in itcan only be translated as :
"without having in them dominion, nor any other hindrance on
the partof the Sarkar".

To make any sense, the word "nor" should have been "or". The
Portuguese Government has covered up this oddity in Wagh's
translation by setting it right in the French translation of IVagh's
document, which they appended at Annex I, to their Mernorial.
The French translation given there reads:-

"le Sarcar donnera dés cette année (LDamao, les spécifiant,.des
villages d'un revenu de 12,000roupies, sans avoir sur eux domina-
tion esalzs éleved'autres difficultésde la part du Sarcar". REJOINDER OF IKDIA (II 59) 5I
However, in order to preserve the grammatical oddity in Wagh's
mistranslation, it should have read as fo1lows:-

"le Sarcar donnera dès cette annéeiiDamgo, les spécifiant,deç
villages d'un revenu de 12,oooroupies, sans avoir sur eux domina-
tion, ni d'autres difficultélaepartdu Sarcar".
This very oddity makes it cleai- that the ambiguity was intro-
,duced deliberately by Wagh and that his intention was todistort
and mislead.

94. The Government of India cannot help but comment on the
fact that it was this distortion which was sent to the Queen of
Portugal for her approval and ratification, and that the Portuguese
Viceroy refrained from sending her the Portuguese text of the
4th May, 1779, which described the grant as "a contribution in
Daman of Rs. 12,000 starting from this year through his (Sarkar's)
jurisdiction", and asJagir in the Maratha version of that document,
which, as the Government of India wiil presently show, was con-
tained in that very document under the signature of Camara, and

formed an integral part of it.

"Dhztme's Translation." The Marathi version in theo@ciaE Portu-
gzteseText O/ the 4thMay 1779
95, At paragraph 70 of the Reply the Portuguese Government

refers to paragraphs 69, 73 and 75 of the Counter-Mernorial and
states that the assertions of fact made therein by the Government
of India are entirely inaccurate. At paragraph 71 the Portuguese
Government states that the attribution of the hlarathi translation
of the Portuguese text of the 4th May, 1779, to Narayan Vithal
Dhume does not have any historical basis. The Portuguese Govern-
ment make the following statement :
"what can however,be said,with certainty concerningthe saidtrans-
lationis soIe:y

(a)that it was made ssubsequentlto the conclusionofthe treaty
since it mentions its ratification by ViceroyD. Frederico Guilherme
deSousa on 11th January 1780.
(b) thatzeiedo not know under what conditionsit was made, nor
when,nor by mhom,norforwhat$ur$ose l"(PortugueseReply, para-
graph 71)-
96, The Government of India admits that when it prepared the
Counter-Mernorial it attributed the authorship of the Marathi

translation of the Portuguese text of the 4th May,1779, to Narayan
Vithal Dhurne on the basis of circumstantial evidence. However,
the Government of India is now in a position to inform the Court
that after thesubmission of the Counter-Memorial its Research Offi-
cers engaged in the preparation of the historical material on the

' Italicsthe Portuguese Government. REJOINDER OF INDIA (II59)
52
facts of the Rlaratha Period have heen able to bring to light the
fact that the Marathi version of the Portuguese 'text of the 4th
May, 1779, which the Government of India described as "Dhume's
Translation", is anofficialdocument of the Portuguese Governrnent
and forms an integral part of a single document which contains
the Portuguese text of the 4th May, 1779.under the signature of the

Portuguese Viceroy Carnara, himself. The Government of India
has reason to believe that this document is available with the
Portuguese Government and has always been available with it. In
fact, photostats of certain documents produced by the Portuguese
Government with its Memorial indicate quite clearly that this very
document, "DhumeJs translation", was actually at hand to those
who were responsible for preparing the Portuguese case, and that
obviously as an act of deliberate policy this document was withheld
from the Court and was not added to the file. In proof of this
assertion the Government of India has annexed at Indian Annex F.
No. 23 a facsimile of the document in question. If the Court will
kindly refer to the photocopy of the original of Annex I of the
Portuguese Memorial it will notice that it is a photocopy of a
document taken from Arguivo Historzco do Estado da India-
Livro 2" de Pazes Tratados dus Pazes entreO MagesfosoEstado e
Punem (Ano de1779) fls. 286r.- 28gv. At the top rjght hand corner

of the first sheet the page number is inscribed as 286. If the Court
wil efer to the facsimile of the document which is ~roduced from
the sarne sourceit will find a document with the nurnbers 277
to 284. A cornparison of the facsirnile and the photocopy will show
clearly that both the documents are from the sarne book, contain
the same handwriting and even bear the same worm marks. It
cannot be contested that the Portuguese Governrnent had no
knowledge of this document or that they did not know "under
what conditions it was made, nor when, nor by whom, nor for what
purpose". (Paragraph 71 of the Reply.) It is this very document
which contains Article 17 in the Marathi language in the following
words :

"Pandit Pradhan should assigntowards Daman from the current
year a Jagirof the revenue oRs. 12,000in Prant Daman."
This document is dated the 4th May, 1779, bears the signature
of Carnara, and has inside it the Portuguese text of the 4th May,
~779, with a translation, article by article, in the Marathi language.
The Portuguese text in this document is the same as the one given
in translation at Indian Annex C.No. z andthe Marathi version con-
tained in this document is the same as that given in Indian Annex

C. No. 5. In the view of the Government of India it is significant
that the Portuguese Government did not at any stage of its plea-
dings produce the Portuguese official text of the4th May, 1779.
97. The Government of India is now in a position to.answer the
question posed by the Portuguese Government in paragraph 71. REJOINDEK OF INDIA (1159)
53
The Portuguese Government has asked under what conditions was
the Marathi translation ofthe Portuguese text ofthe 4th May,1779,
made. The answer is that it waç made officially by the Portuguese
Government under the signature ofthe Portuguese Viceroy,Camara.
The Portuguese Government has asked when it was made. The
answer isthat sinceitcontains the signature of Camara and is found
inside a document of the 4th May 1779 it must have been made
on or before that date. The Portuguese Government askç by whom
itwas made. The answer is that it was made either by the Portu-
guese Envoy, Dhurne, or by the Portuguese official trangator,
Wagh, and in any case it was made under the authority of the
Portuguese Government. As the Government of India has stated
in paragraph 76 of the Counter-Mernonal, it is not of much rele-
vance whether Anant Kamodi Wagh or Narayan Vithal Dhume
was responsible for the translation in question. The relevant fact
is that the description "Jagir" is found in a Portuguese document
under the signature of the Portuguese Viceroy, was known to the
Portuguese Government , and it was on the basis of thiç description
that the Maratha Government drew up the text of 17th December
1779. At paragraphs 70 to 74 of its Reply the Portuguese Govern-
ment deny even the interpretative value ofthe above document and
cal1it:
"an anonymous, defective and tendentious translation of the Por-
tuguese original the 4th May 1779".

The Government of India believe that they have made their point
and they will not add to'the bulk of the Rejoinder by making any
further comment either on the arguments of the Portuguese
Government which are based on.the suppression of this document
frorn the Court or on this conductofthe Portuguese Government. REJOINDER OF INDIA (II 59)

SECTION III

TheNature of theSaranjam orJagir Grant.received by thePortuguese

in 1783 and 1785
98. In paragraph 52 etseq. of the Counter-Memorial, the Govern-
ment of lndia set out to show that, contrary to what is asserted by
the Portuguese Government al1that the Portuguese received from
the hlarathas in 1783 and 1785 was a revocable and temporary title
to a share of the public revenues of villages in Dadra and Nagar

Aveli in Maratha territory. In 1783 and 1785, for the purpose of
ensuring fnendly relations on the part of the Portuguese of Goa,
and on condition of the Portuguese of Goa continuing such relations
and rendering certain services to the Marathas, thearatha Govern-
ment made to the former an annual subsidy of Rs. IZ,OOO which
was to be collected in the form of public revenues from certain
Maratha villages. This grant was known as Jagir or Sarànjam, was
made for a political purpose, and its tenure was dependent on the
existence of friendly relations on the part of the Portuguese of Goa
and on the performance by them of certain services incidental to
the grant, i.e., the services affeudatory grantee to the Sovereign
Grantor. In no case could the performance of such service on the
part of the grantee qualify or derogate from the sovereign rights of
the Grantor in the subject matter of the grant.

99. The grant known in Indian Public Law as Saranjamor Jagir
was explained in paragraph 56 of the Counter-Memorial as follows:
"Saranjarn or Jagir (the two terms being interchangeable, Saran-
jarn being the Maratha equivalent of the Moghul term Jagir) was
the temporary assignment by a sovereign grantorof a share of the
public revenue from villages orIands,A Saranjam was neither
transferable nor hereditary. It was enjoyed at the pleasurof the
Sovereign and waç terminable at any time. This tenure is weli-
known in India and onginated in the Moghul tirnes when it .was
known as Jagir. In Maratha country it was known as Saranjam.
The revocable nature of the grant known as Saranjam or Jagirwas
consistently strecsed by the British Government which did, in fact
prudence on the subject and it appears clearly from numerousris-
decisions of British Indian Courts and of the Judicial Cornmittee
ofthe Privy Council that (A) a Saranjam was a grant only of the
royal share of the revenue, and unless expressly provided fodid
not grant any proprietary interest in the soil, and (B)in either case
the grant was revocable at the pleasureof the Government. In
Secretaryof State v.Gir'abai (A.I.R. 1927 (P.C.) 238)the Privy
Council held: "NOWwe IId from Wilson's Glossary that amongst REJOINDER OF INDIA (II 59) 55
the Marathas the terni saranjam was applied specially to a 'tempo-
rary assignment of revenue from villages or lands for the support of
troops or for persona1military services usually for the lifeof the
grantee: also to grants made to perçons appointed to civil offices
of the States to enable them to maintain their dignity and to grants
for charitable purposes. These were neither transferable nor here-
ditary and were held at the pIeasure of the sovereign."
A similar view was taken by the Privy Councilin Raghoji Rao 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 rules and regulations relating to
Saranjam and Jagir, the British Government recognizedand accept-
ed that in Indian Public Law Saranjams and jagirs were revocable
and terminable at the pleasure of the Government. (Reports and
studies of British officerson the nature of saranjams and jagir will
be found at Indian Annex E. No. 1.) Section 38 of the Bombay
Regulation 7 of 1827provided that a Jagir was liable to resumption
at the pleasure of the Government. This principle was repeated
in Section 1 (3) of the Bombay Replation 6 of 1833, and in the
Saranjam Rules of 1898. In Daulatrao v. Province of Bombay (49
bay High Court observed that "the wholestructure of the Saranjam
tenure isfounded 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 withheld at
the will of the sovereign power, and, if granted, the fixity of the
tenure is always subject to interruption or revocation by resump-
tion,be it temporary or absolute in character". Under the Bombay
Saranjam Rules, 1952, all saranjams were resumed by the Govern-
ment with effectfrom 1stNovember, 1952.(Indian AnnexE. No. I)."

IOO. As authority for the above account of the tenure known as
saranjamor jagir, as it was understood by the Moghul rulers of
India, by the Marathaç, by the British Indian Government and the
Government of Independent India, reference was made to the
books and reports of British officers of the nineteenth century-
Harington (18171, Maddock (1841) and Etheridge (1874) and a

book by Patel published in 1954 (Indian Annex E. No. I at II,pp.
216, 224 and 236, respectively), and also to important decisions of
the Judicial Cornmittee of the Privy Council, and of Indian courts.

101. The points which the Government of India wished to empha-
size in the Counter-Mernorial were:
(1) Saranjam or jagir was a grant made by a Sovereign Grantor
to a subject, vassal or feudatory;
(2) The grant of saranjam or jagir consisted of the assignment
by the Sovereign Grantor of the public revenue or a share-of -the
public revenue from villages or lands under the sovereign jurisdic-
tion of the Grantor. In rare cases, the property in the. villages or

lands was included in the grant. However, unless the grant of
property was absolutely clear from the terms of the grant, the 56 REJOINDER OF INDIA (II59)

grant carned with it only an assignment of public revenue or a
share of public revenue;
(3) The grant was enjoyed at the pleasure of the Sovereign

Grantor and was terminable at any time at his will and discretion;
(4) The grant by its very nature was temporary, non-transferable
and non-heredit ary.

102. At Annexes Iand z of their Reply, the Portuguese Govern-
ment have appended an argument based apparently on a study of
saranjam and jagir tenure. The Government of India cannot help
but remark that the study of the tenure by the Portuguese Govern-
ment is very incomplete and that the Portuguese Government have
seriously mis-stated the Indian Public Law relating to the subject.
The Government of India therefore seeks the indulgence of the
Court for the somewhat fuller exposition of the Indian PubIic Law
relating to saranjam and jagir tenure which Portugal's misrepresen-

tation of that law obliges it to present to the Court.

Jagirs granted by the MoghuE Rulers ofIndia

103. The practice of granting jagirs was started by the Moghul
emperors who ruled India from the sixteenth to the eighteenth
century. It was their practice to keep and maintain a feudal ansto-
cracy as the main provider of services-political and military-by
assigning l to them, villages or tracts of land whose revenue they
could collect and,appropriate. In Moghul law and practice, the
jagirdar, i.e., the holder of the jagir, was a servant of the govern-
ment and he usually held an office cded the muns~b. A classic

account of the jagirdar system under the Moghuls is contained in
an erudite work by John Herbert Harington, President of the
Council ofthe College Regulations of Bengal Presidency, which was
printed at Calcutta in 1817A .n extract from the work will be found
at Indian Annex E. No. I, LI, pp. 216-223 The attention of the
Court is respectfully directed to the passage which reads:

"A jageer isproperly an appendage of a dignity called munsub,
which.it is therefore necessary to .explain. In the Moghul Empire
there areno hereditary dignities.The rank of the nobles was offered
by special appointment from the emperor forlife only, and revo-
cable at hispleasure; and it was estimated by the number.of horse
which they were supposed to command. This command was denom-
inated munsub: and a jageer ivas an appendage to it ...The
jageers were granted forthe purpose O#enabling the rnunsztbdaî.~to
appear with a suitable retilauin the presenceO# the sovereign, or to
enablethemtodischarge ilte duties othe station assigned tothem ...

1 The word "assignment"has a strict connotatiinIndian law. It means the
selection, nominatioappointment,orthe marking out of certain fiscal toahts
grantee by the sovereign granFor.example, the right to collect and appropriate
connectionwith revenue grants in British Indian jurisprudence.ntlused in REJOINDER OF INDIA (II 59) 5 7

and as the dignity itself was granted for life so were the funds
assigaed for it ...From the, precëding explanation a jageer may be -
defined to mean assignment in land or money, for the su$$ort of a
certaindignity and for the troopsannexed thereto. That it was either a
- conditional or unconditional. The former implied that itwas granted
for the expenses of a particular office or station; the latter that it
was independent of any officeor 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, ifwas grantedfor
life oruntil theemperorshouldpleasetoresgmethedignity ordiminish

it.In the former c+e, it existed whilst the possessor continued in
office onIy; and upon his removal or dismissa1 devolved either in
whole or in part upcn his successor. The services requiredfrom the
jagirdars zuereeitherspecificor they werebuund to the fierformanceof
raikatevedrutiesmight beassignedto themand to attendin personwith
their eflectivetroops whenever required ...As an equivalent for the
pay which a inunsubdar was entitled to receive, either on account
of his persona1 allowance, or that of the troops under him, hereceived
possessions and certain lands, the rent of which was calculated in
daums ...If they were found tu Producemore thafi the jagirdar was
entitledto,hewas obligedt~accountfor theoverplusunderthedenomin-
ationoftowfeerorexcess ..the followinginstancein proof of the strict- '
ness with which thegovernmentexactedthe towfeeris so remarkable
that I shaEE insert it at Eengthfrom a book of good authority ...Such
were the ancient and regular forms of the Moghul Constitution

regarding the dignity of munsub; and its appendage jageer; and
from these it will appear that a iageerdarhad not originallyor con-
*stitutionally, any right or propertyin thelands."
The above is believed by the ~overnrnent of India to be the most

accurate and authoritative account of the Moghul gant known as
jagir l.

"Glossary of Judicial and Revenue Terms': published.atLondon inhi1855 may also
be noted: . .

"a tenure. under the Mohammadan government in which thepublic~reventdes
of a given tract of land were made over to a serofthe'statetogether with the
àdminister the general government of the 'district. The assignmewaseseither
conditional or unconditional; ithe former case, some public service,as the
levy of maintenance of troops or other specified duty, was engaged for: the
latter was left to thentire disposa1 of the grantee. The assignmewas either
for a stated termor, more usually, for the lifetime of'the holder, Iapging, on
his death, to the strtte, although not unusually renewed to his heir, on payment
of a nazavana or fine and sometimes specified tobe a hereditary assignment;
upon which specificationit was held to be.a life tenure only; Born. Reg. xxxvii
1793 cl. 15;A jagirmas also liable to forfeiture~onfailure of,pev#armanceof the
conditions on which ii,was granted oOH the holder's inculring the daspleasure of
the emperor. On the other-hand,inthe inability of the stadeta vindatsrights,
a jagiv was sontetames converted iata per+etuaE and trainsferabte esta..."
(page 224.) REJOINDER OF INDIA (II 59)
93
Jagirs or Saranjams Granied by the Marathas

104. The Maratha system of administration was to a great extent
modelled on the Moghul system and it was also the practice of the

Maratha Government to make to their subjects, vassals and feuda-
tories, grants of public revenue. The Marathas borrowed a great
deal of their administrative terminology from the Moghuls and the
word jagir was also used by them. More commonly, however, the
Marathas used another word to describe thegrant of japr and that

word was Saranjam. The grant known as saranjam came to be
associated exclusively with Maratha rule. There was no practical
difference between the Moghul jagir and the Maratha saranjam.
Professor Wilson in his "Glossary of Jztdicial and Revenue Te-su l
described saranjam in the fo1Iowing words :

"among the Marathas it was applied especially to the temfiorary
assignmentofrevenuefromvillagesorlandsfor the support of troops
or for persona1military service, usually for the iife of the grantee;
also to grants made to persons appointed to civil offices,of the state
to enable them to maintain their dignity, and to grants for charitable

purposes: thesewereneithertransferablenor hereditaryand wereheZd
ut thepleaszcre of thesovereign" 2.
As regards the practical similarity of saranjam and jagir, the

attention of the Court is directed to the Preface of Colonel Ethe-
ridge, the British Revenue Officer of Bombay Presidency? to his
List of Saranjams published in 1874 (Indian Annex E. No. 1,
II, p. 236) where he says :

"It was the practice under former ~obernrnent both Mohomedan
and hlahratta to.maintain a species of feudal aristocracy for State
purposes by temporaryassignmerztsof revenueeither for the support
of troops for personal service, the maintenance of official dignity
or for other specific reason. Holders af such granlswereentrustedat
the the with thepowersrequisiteto enablethemfo coWeca tnd a$pro-
$riatethe revenueandtoadministerthegeneralgovemmentof thetract

' 1Referkd to above.
8Page 465.
8Colonel A. T. Etheridge, C.S.I.,Settlement Officer, Southern Division,was
head of the Alienation Office at Poona.,The word 'Alienation' has a specific connot-
ation in Indian law. The following extract from Phadnis, "The Law of Saranjams
aofthe word 'alienated:1936,page 68, explains shortly and admirably the meaning

"Alienated: Meaning of :-
'Alienated' means transferred iso faras the rights of Government to pay-
ment ofrent or land revenue are concerned, wholiy or partially, to the ownership
of any person. (Definition of 'alienated', Land Revenue Code, 1879. S(20)).
A1ienated'-holdings as a class fa11into thrmain divisions. viz:-
' (a) Saranjam, jagir or other political alienations;'
...(b) Service Inams; 9 3
(c) Non-service Inams.

Of these tbree classes of alienated holdings, the first is already dwith
in the foregoing part of this book under the heading, 'The Law of Saran..."' REJOINDE R OF ZNDIA (II 59)

of land which p~oducedit. Under 'the Mahomedan dyriasty such
holdings were known as Jaghir, under the Mahratta rule Saranjam. ;
Ii any .original'distinctivefeature marked the tenure of Jaghir and
Saranjam, it ceasedto exist during the Makatta Empire, for at the
period of the introduction of the British Government there was no i
practical difference between a Jaghirdar and a Saranjamdar either
in the Deccan or Southern Marhatta country. 'I'he terms Jaghir i
and Saranjam areconvertible.The latter term iç now almost univer- i
sdy adopted." I
I
105. The rule of the Marathas in the west of India came to an end
in 1817-1818 when they were conquered by the British. The British
Government appointed Mountstuart Elphinstone as Commissioner

for the Conquered Territories. Previous to this appointment,
Elphinstone was the British Resident at the Poona Court from 1802
to 1803 and again from 1811 to 1817. During that time and after-
wards as Commissioner for the Conquered Territories he made a
careful study of the Maratha administrative and revenue system

and his views on the jagirdari and saranjamdari'system are contain-
ed in his despatch from Poona dated the 26th October, ISII l;his
report of the 25th October, 1819 to the Governor-General ofIndia 2;
his evidence before the Select Cornmittee of the House of Lords in
March 1830; and in his History of India published in London in
1841: The account of the jagirdan and saranjamdari systern of the

Marathas given in Elphinstone's History of India is the most easy
to cornprehend and does not abound in technical terms and the
following extract from-that book may assist the Court in under-
standing the jagirdari and saranjamdari system:-

"~t'has been mentioned tbat the Ki@ c& aliknate liis share in a
. village. In like manner he often alienates large portions of territory,
including'numerous -viIlages as well as' tracts of unappropriated
waste. But in al1these cases it is only his own rights that he makes
over: those of the village landholders and permanent tenants (where
'such exist), of district and village officers, and of persons holding
by previous grants from himself or his predecessors, remaining
unaffected by the transfers. These grants are made for the payment
' of troops and civil officers,for the support of temples, the mainte-
nance of holy men, or for rewards of public service. Lands given for
the two first purposes are called Jagirs &.

English Records of Maratha History, Poona Residency Correspondence, Vol.
XII,Poona Affairs (~l~hinstone'i Embassy) Part 1, 1811-1815 e,ited by G. S.
Sardesai, Bombay, 1950, page 79:
* See Indian Annex E. Ko. I,II, p.229. .
Footnotes in Elphinstone'sHastory ofI~dia.'
3 Want of advertence of this circumstancelias led to mislakes regardingthe
property in the soil. The native expressbeing "to gvunt village", or "a district",
other proprietors.ed that grant implied the whole, and excluded the notion of any
"Jagir, whichris.a Persian word in itsorigin, is applied tolands given by
government for personal support, or as a fief for +e maintenancoftroops for the
service of the state: Sorne'service isimplied in the personal, as well as military.
Jagir." (Col. Sykes on Land Tenures in the Dekkan, Jour R. A. S. 1835.). . ri*60 REJOINDER OF INDIA {II 59)

This mode of remunerating the services of certain officers, and
of providing for holy men, is as old as Menu. When it came to be
applied to troops is uncertain. It was in use in Bijayanagar, and
other states of the south of India, when they were overturned by the
Mussulmans; but the more perfect form in which it is now found
among the Marattas is probably of modem date. Such grants

originate in the convenience of giving an assignment in a district
near the station of the troops, instead of an order on the general
treasury; a mode of transfer particularly adapted toa country where
the revenue is paid in kind.
These assignments at first were for specificsums equal to the pay
due: but when they had long been continued, and were large enough
to swallow up the whole revenue of a district, it was natural to
simplify the arrangement, by transferring the collection to the chief
of the rnilitary body. This was done with everyprecaution to prevent
the chiefs appropriating more than the pay of the troops, or exer-

cising any power not usually vested in other collectors. The system
adopted by the Marathas gives a full illustration of the means
. resorted to for this purpose.
According to their plan, the number and description of troops
' to be maintained by each chief was described; the pay of each
division carefully calculated; allowances made for officers, sorne-
times even to the extent of naming individuais; a sum was allotted
for the persona1 expenses of the chief himself; and every particular
regarding the terms of service, the mode of mustering, and other
arrangements, was laid down. A portion of territory was then select-
ed, of which the share belonging to the govemment should be suffi-

cient, after deducting the expenses of collection and other charges,
to supply the amount which had been shown to be requisite; and
the whole territory yielding that arnount was made over to the
chief. The chief waç now placed in the situation of the governor of
a revenue division, and exercised ail the other functions which are
now united in the holder of that ofllce.
The power to interfere for the protection of subordinate rights was,
however, retained by the government, as weli asa claim to any
revenue which the tract assigned might yield beyond the amount
for which it was granted. Those stipulations were enforced by the

appointment of two or more civil officers, directiy from the govern-
ment, to inspect the whole of the chief's proceedings, as well in
managing histroops as his lands. '
Nothwithsanding ali these precautions, the usud consequences
of such grants did not fail to appear. The lands had from the first
' a tendency to become hereditary; and the control of the overnment
always grew weaker in proportion to the time that had e Yapsed from
the first assignment. The. original principle of the grant, however,
was never.lost sight of, andthe necessity of observing its conditions
1 was neverrdenied." l ...

l The History of'India. The Hindu and Mahomedan Periods, by the Hon. Mount-
stuart Elphinstone, with Notes and Additions by E. B. Cowell, M.A., late Principal
of Sanskrit College, Calcutta, 9th Edition, London, 1916, pages.80- .82.ndian
Annex F. No: 24. . ,.% . 3. REJOINDER OF INDIA (II59) 61 :

106. As will appear below, the British Indian authorities, for 1
reasons of expediency, decided to continue certain saranjam and !
jagir grants made by former governments. In doing so they shed !
considerable light on the nature of the saranjam or jagir tenure
known to the Marathas. The British Indian Government made a I
deep and careful study of the Maratha system and adopted it as its
own, subject to minor changes. On this basis, it drew up "rules of 1

convenience" as a guide to its administators '.A study of the ori- 1
ginal Maratha system was aIso made by British Indian Courts
when dealing with saranjam or jagir cases. In this manner, the
incidents of the original Maratha tenure of saranjam or jagir are
to be gathered from the administrative practice of the British '
Indian Government, from the judicial decisions of British Indian
Courts, and particularly from the decisions of the Judicial Commit-
tee of the Privy Council which was until recently the highest ,
judicial tribunal for Indian cases. I

The Incidents of theoriginal Maratha tenure of Saraniam or Jagir
as understood and applied by the British Indian Government

107. Maratha territory was acquired by the British in two stages.
The northern territory was .taken frorn the Marathas under the
Treaty of 1817 and the southernterritory was taken by them under
Proclamation of Conquest. (Indian Annex E. No. 12, II, p.266.)
Elphinstone, who was appointed Commissioner for the Conquered
Territories, was charged with the settlement of the southern country.

On the 16th June, 1818, Elphinstone submitted to the Governor
General a plan for the continuation of certain Maratha grants of
saranjam and jagir. Elphinstone recommended that certain grants
. might, as a matter of policy, be continued from father to son. He
stated:
"al1Jaghirs held by ancient and great familieswererecommended to
be heredilary(but no communication has been made on this subject
ta the holders).Those whichwereto ceaseat thedeath of the present
possessors were specified, and where any allowance was to be
continued to their heirs it was likewise notdown ...a

A proclamation in Marathi cailing on all who had claims to
jaghirs to appear and show their sanads, with lists of their personal
lands, was made by Elphinstone to obtain the necessary information
(Annex F. No. 25).
108, On the 4th March, 1820, the Governor-General replied to
EIphinstone's report. He said that he was:

"anxious that the alienations of public revenue, eitheilzJaghirs,
pensions,or othergrants,shouki belimited as much as fiossiblas to
number, anao~nt,and duvation". (Indian Annex E. No. I,II,p. 240).

Seeparagraphs109to 11 Ibelow.
a Annex E. No.I,II, p. 23862 REJOINDER OF INDIA (II 59)

rog. In a despatch of the 26th October, 1842, the Court of Direc-
tors of the East India Company disapproved of a recommendation
made on the sarne subject by one Nills, a British officer in India.

With regard to jagirs granted after the year 1751 the Court said:
"...Mr. Mills has fallen into another error in supposing us to have
determined that al1 estates which were marked 'hereditary' in Mr.
Elphinstone's original recommendation should be hereditary. On
the contrary,we expressly declared Our intention to be only 'that
Mr.Elphinçtone's schedulesbe compared with those submitted with
the letters under reply, in order that., in any case where the latter
are less favourableto the parties, it may be deliberately considered
which of the two should be acted upon'." (Indian AnnexE. No.1,
II, pp.242-243.)

Finally, it was determined that al1 saranjamç granted before 1751
were to be treated ashereditary, that al1çaranjams granted between
1751 and 1796 would be continued to the holder at the introduction
of British rule for one generation further, with a pension to the
third generation, and that al1saranjams granted after 1796 would
be continued to the holder at the introduction of British rule with

a pension to the next generation. (Annex E. No. 1,II p,.244.)

110. The history of the manner in which saranjamç and jagirs
granted by the Marathas were dealt with by the British Govern-
ment after the conquest of the Maratha territories is thus succintly
stated in Colonel Etheridge's preface: he showsclearly that when,
on the advice of Elphinstone, it was determined that al1saranjams
granted bejore 1751 should be continued in hereditary manner, this
concession was made, not as of right of the saranjamdars, but as an
act of grace on the part of the British Government and as a matter
of policy, and the British Government reserved to itself the-power
to determine, whenever occasion might arise, 'the nature and extent

of its own bounty. The traditional power of government to terrni-
nate a saranjam or jagir grant at its pleasure and in itç sole discre-
tion was declared again and again inthe various rules and reguIations
that were framed for the guidance of the administration. This
traditional power to cancel or revoke a saranjam or jagir grant came
to be known as the power of "resumption". Thus Section 38 of
Regulation XVII of 1827 described the traditional power in the
following words :

"land held exemptas jaghir shall be liable to resumptioand assess-
ment under the general rules at the pleasure ofthe Government".

This was further explained in Clause (3)of Section I of Regulation
VI of 1833 which read:
.( . . . ,_
"jaghir or other Iandsheld onservicetenure are declared to beresum-
able at the pleaçure of the Government under forms laid down by
Clause (1)Section 38 of Regulation XVII of 1827". REJOINDER OF INDIA (II 59) 63 i

.The "general rules" relating. to saranjam and jagir gran.ts were I
determined, revised and altered from time to time according to 1
the convenience of the government. It was accepted that in the ;
field of saranjam or jagir grsnts the power of the government was
i
supreme and that its power to make and révise rules relating to l
these grants could-not be questioned by courts of law l. .
~aranjam Rules of '18~8, as arnended in 1901, continued to 1
govern Government's attitude towards saranjam grants till the
time such grants were finally terrninated in 1952. These Rules

described each saranjam to be a "life-estate" even tbough it was
one which Government had decided to continue from father to son: 1
Rules (1)and (V) read as follows : I
"(1) Saranjams shall be ordinarily continued in accordance with '

the decisions already paçsed by Government in each case."
"(V) Every Saranjam shall be held as a life estate. It shall be
formalIyresumedonthedeath ofthe holderandincasesinwhich ,
it iscapable offurthercontinuanceit shallbemade to continueto '
the next holder asa freshgrant from Government, unencum-
bered by any debts or charges, Save such as may bespecially
imposed by Government itself." (India Annex F. No. 26.) 1

rir. In the last avâilable judicial decision on the subject of Saran-
jam, Daulatrao Malojirao v. Province of Bombay, the full Bench of
the High Court of Bombay held that Saranjam Rules made by the
Governrnent were rules of convenience only. They did not exhaust 1
the. general power of Government or prevent Government from
making a decision or determination referable to a particular saran- I

jam without altering the rules with regard to all of them 2. I
112. We may now state the incidents of the Maratha grant of
Saranjam or jagir in the form of principles enunciated in British :
Indian jurisprudence.

Pri?zciPleNo. r !
Saranjam or jagir was the assignment of the riglzt to collectpubEic I

revenue or a share of public revenuefrom given viltages or tracts of
Zand.In very rare cases the Proprietary interesi ifi the Zandwas also i
assigned together witk the above right to collect $ubEic revenzGeor a i
share of public revenNe.
'
113. Abundant authority can be found in support of the above
principle. In Ramckandra v. Venkatrao, an appeal decided by the
High Court of Bombay in.1882 a,the High Court held that the grant

See Rarnchandra v. Venkalrao, lndiaLaw Reports,6 Bombay Series, Volume ;
VI, page 598. Indian Annex F.No. 28.See paragraph 113 below.
The Indian Law Reports, 1947, -Bombay Series, page 337. Indian Annex F.
No. 27.
Indian Law Reports, Bombay Series, Volume VI, 1882,pages 598 to 616.
Indian Annex F. No. 28.
l64 REJOINDER OF INDIA (II 59)

in jaghir or saranjam was very rarely a grant of the soil and in any
particular case the burden of proving that itwas a grant of the soi1
lay very heavily on the party alleging it. In case of the grant of the
soil, special and express words to that effect should be contained in
the Sanad of grant. The Court quoted from another deciçionl:

"Sanadi grants in inam, saranjam, jagir, wazifa, wakf, devasthan,
and sevasthan, are generaiIy speaking, more properly descnbed as
alisnations of the royalsharein the produce of the land, Le. of land
revenue, than grants of land, alrhough in popular parlance, and in
this judgment, occasionally so-called."
That observation of Westropp, C. J., the Court said, was the
foundation of many subsequent decisions. The Court also cited a

qualification of the principle made by the same judge 2:
"if words are employed in a grant, which expressly, or by necessary
implication, indicate that Govemment intends that so far as it may
have 'any ownership in the soil, that ownership may pass to the
grantee, neither Government nor any other person subsequently to
the date of the grant deriving from Government, can be permitted
to say thatthe ownership didnot so pass ...In the sanad in evidence
here whosoever framed it, was apparently determined that no
ambiguity should exist as to what the force of the term 'village'
might be, and, in order to be explicit, he added to the grant of the
village in inam the words 'including the waters, the trees, the stones
(including quarries), the mines and the hidden treasures therein."

The Court said that if this principle was true as regards grants in
inam it was specialEyaPPEicable to grants in jaghirs and saranjam.
The Court after quoting a passage from Neil Baillie, "Essay on the
Land Tax of India" 3,said:
"We understand Mr. Neill Baillie as expressing in this passage a
clear opinion that, although the etymology of the word jaghir ha
sometimes given rise to the idea that the term involves a taking of
land, or an estate in land, yet, in facthe grantis nothifigmorethan
assignmentof land revenue.And the case of The East IndiaComfiany
v. Syed Ali4 shows that it was upon this ground that the Madras
Government justified the resumption of jagirs, when it first assumed
the Government of theCarnatic in 1801.At page 575of the Report
isthe plea of The East India Company, that:
"even when the language of the grants might seem to convey a
propnetary interest in the soil, the grantees confessedly possessed
no such interest, the subject matter of the grant being a mere jaghir,
or portion of public land revenue, together with the Government
powers of collecting the same." The authorities wfiich we have
quoted, (and none have been shown to us which support a different

Westropp, C.J., in Krishnarao Ganesh v. Rangrao 4 Born. H. C. RI.A.CJ.
a Westropp, C.5..in another case, Aowii Narayasi v. Dadaji Bapuji, ILawan
Reports, Bombay Series, Volume1,page 52.7
a London, 1873.
4 7 Moore 1.App. 555.
7 Moore 1. App. REJOINDER OF INDIA (II 59) 65

conclusion), may, we think, be taken as at Ieast establishing that
agrantin jaghirorsaranjnmis veryrarelyagrantofthe soil and that
the burden of proving that itis in any particular case a grant of the
soi1lies very heavily upon the party alleging it."

114. In a Privy Council case of 1922, TheSecretary ofState v. Lax-
mibai l a decision was given on three points. One, that Saranjam was
ordinarily a grant of the royal share of the revenue only, but that
whether it was a grant of the soil or thegrant of the royal share of
the revenue only was to be determined upon the facts in each case

and that there was no presumption either way; and, Two, that in
the case of a Saranjarn which included the grant of thesoil, theGovern-
ment, in the exercise of its soverezgnrights, was entitled to eject the
PlaintZQ,the holder of the Saranjam, and not merely doreassess the
revenue of the land; and, Three, that the right of the Government to
resztme the Saranjam, both as regards ifs revenue and the soil, couEd

not bequestionedin Civi Clourts. For the time being, we shall consi-
der only the first point. Nothing is to be found in the decision to
show that the Privy Council overruled the judgment in Ranzchandra
v. Venkatrao. On the contrary, the Privy Council agreed that a
Saranjam was "ordinarily a grant of the royal revenue only". How-
ever, in laying down that there was no presumption either way the

Privy Council seemed to be influenced by two of its previous
decisions a which had nothing to do with Saranjam or Jagir granted
by the Marathas but related to a grant known as Inam in Madras
Presidency-the incidents of which grant, as recognized in many
decisions, were quite different from the Maratha grant of Saranj am
or Jagir.

Inam
115. In 1927 in the leading case of Secretary ofState v,Girjabai a,

the Privy Council pointed out-
"there are essential differenceç, çtatutory and otherwise between
a saranjam and an inam; an inarn is a heritable estate whereas a
saranjanais an estatefor life.The judgment of the Privy Councilin
Laxmibai's case shows that the inam rulesdo not apply to a çaran-
jam ..The word Inam is sometimes vaguely applied to revenue-
freeland, without referenceto perpetuity or any specifiedconditions.
But id would be unsafe to apfily to a peculia~grant like Mahratta

sararzjnmrules which wereheldapplicableto grunts in perpetzdity."
l Law Reports. Indian Appeals, Vol. L1922-23,pages 49 to57. Indian Annex
F. No. 29.
" ~uvianara~anra v. Patanna, L, R. qg I.A. 209, and Chidambava Sivaprakasa
Pandara Sannadhigal v. Vee~ama Reddi, L.R.49 I.A.286.Both these were Inam
cases from Madras and did not concer... . ,- ..t-e Maratha tenure of Saraniam.
a Law Reports. Indian Appeals, volume LIV,1926-27,pages 359to 371.1idian
Annex F. No. 30.
Professor Wilson in hiGlossaryreferred to above, defines Inam as follows:
"A gift, a benefactiingeneral, a gift asuperior to an inferiIn.India,
and especiauy in the south and among the hlarathathe term was specially
applied to grants of land held rent free, and in hereditaand perpetual '
1x6. Several sub-principles arise from Principle No. I. We may
now proceed to examine three sub-principles.

The grantee of saranjnm or jagir cozlld not inlerferein the rights
in lands existing ~reviously tothe grant.

117. We have already seen this principle enpnciated in the
extract from Elphinstone's History of India1. Phadnis in "The
Law of Saranjams and Inams" quoted above states:

"Saranjams whether they aregrants of soilitself or of the revenue
only ofspecifiedlands, they could not and were not meant to inter-
fere with the rights in lands existing previously to and at the time
of the grant. In so far as there were occupancy tenants on those
lands they would retain their nght of possession but subject to
paying the assessed land revenue payable before the grant to G0.v-
ernment and then after the grant to the Saranjamdar."

In the Secretary of Staie v. Girjabai the Privy Council stated:

"It would seem to follow from the nature of saranjams that
whether they were grants of the soil itself or the revenue only of
specified lands, they could not and were not meant to interfere
with rights in those lands existing previously to and at the time of
the grant."

Certain rights known as Kadimi rights or Huqs, which included
Watans, or the rights of hereditary officers of the village to receive
cesses, taxes or a share of the public revenue, were distinct and

outside the grant of the Saranjam or Jagir: the village hereditary
officers were officers of the King and their ancien! rights were to
be respected by the Saranjamdar or Jagirdar 4.

The right of the Saranjamdar or Jagirdar to collecf revenzte was
Limited tothe sum assessedby the Sovereign and specifiedin the granb.
The szdrplus was to be sztrrenderedto the Sovereign.

occupation..the term was also vaguely applied to grants of rent-free land,
.217t0u218.ference to the perpetuityor any specified conditions..."Pages

Paragraph Ioj above.
In footnote 3 to paragraph104.
4 Indian Law on this pointwas exceedingly detailed and intriktThe Govern-
ment of Indiais canstrainedto give some account of the Indian law on the point
for the reason that in their Sanads respecting the grant of Saranjam to the-
guese, the Marathas expressly excluded from the grant the rights of.the hereditary
village officersthe Kulkarni, Patel, etc.-andthe Portuguese were called upon
to respect those rights. See paragraphs88 and 89 of the Counter-blemorial.In
order toassist the Court a brief extract on "Watanfrom Dandekar, "The Law of
Land Tenuves", Volume 1,Bombay 1912,is given at Indian Annex F. No. 31. REJOINDER OP IKDIA (II59) 67 :

118: We have seen this principle enunciated in the extract '
frorn Harington l. 1

Szcb-Priîzciple(3) : !
The Saranjarndar or Jagirdar could not appropriate 'the land or
1
create permanent oc~upancyrights in kis Javour.
119. We have already referred to the Privy Council decision 1
in Secretary of State v. Girjabai 2. 1
The case concerned certain villages granted in Saranjam by the
Marathas. The grant was not of the land of the villages but of the
royal share of the revenue. Upon the death of the Saranjamdar the ;
British Government resumed the Saranjam and the lands in suit
were held by the British Commisçioner to have become the prop-

erty of the Government. The Privy Council held that where land j
of the Saranjam grant of the revenue of the villages had for some ;
reason or other passed into the possession of the Saranjamdar, the ,
rights of the Saranjamdar in those lands ceased upon the resurnp- ,
tion of the Saranjam by the Government, The Government was
entitled to resume not only the revenue, but also rights and bene- i
fits which the grantee had secured by virtue of the grant. (Indian
Annex F. No. 30.) !

. . Principle No. 2 !

Saranjam or Jagirs were granted in consideration of, and their 1
continuation was conditional on, the future ~erfor.pizance of fuithfui ,
service to the Sovereign. The Saranjamdar or Jagirdar was a servant
of the State and he was chargedwith CO-operationwith the Sovereign
in the maintenance of general order in the lands the public revenue ,
O/ uhich, or a share of the $~blic revenu8 of whkh, was assigned to 1
him.
I
120. In the classic definitions of Saranjam or Jagir grantç which
we have noticed above (see paragraph 103 to 105 above) the service ,
nature of the grant is clearly brought out. We have seen that the ,
grant was made by a Sovereign ta a subject, vassal or feudatory.
In Raghojz'raov. Lakshmanrao the High Court of Bombay said,
"al1 jaghirs were rather for services to be rendered than for service
already rendered:". In the case of Shekh Sultan Sani v. Shekh :
Ajmodin (see paragraph 135 below), the Pnvy Council emphasised ;
the service nature of the grant "the grant is made for service to be ,
rendered by him and is in its terms personal." I

121. After the conquest, of. the Maratha territories when the i
British Government regranted by its grace and bounty Saranjams
and Jagirs to those who had reccived these grants from the Mara- i
thas, they made it perfectly clear that al1Jagirdars were subjects,
'
Dandekar. Indian. Annex F. No.31.e may alço be made to the extractfrom 1
' Law Reports,Indian Appeals, Volume LIV, 1926-27,pages 359 to 371-68 REJOINDER OF INDIA (II 59)

vassals and feudatories of the British Government. They were
required to render loyal and faithful service to the British Govern-
ment l.

122. During Moghul and Maratha times, as we have already seen,
Jagirs and Saranjams were granted to servants of the State, usually
for the performance of military duties. The British Government,
however, did not, for considerations of public policy, exact rnilitary
service from its Jagirdars and Saranjarndars.

123.During Moghul and Maratha times, holders of Jagirs and
Saranjam grants were entrusted with powers sufficient to enable
them to collect and appropriate the revenue and to adrninister the
general government of the tract of land which produced it. In fact
the maintenance of general order in the tract of land was a duty to
be performed by the Saranjamdar or Jagirdar in service to the

Sovereign Grantor.
While, for reasons ofpublic policy, the British Government waived
military service from saranjamdars and jagirdars, and took the
general administration in its own hand, it delegated to them, in the
traditional manner certain powers for the collection of the revenue.
The Commission granting such power described it as "delegated
power vested in you during the pleasure and subject to the recall

of the said Governor in Councii". (Annex F. No. 33.)
124. Thus it wiU be seen that whatever powers of management or
duties of maintaining general order were made incidental to the
grant of Saranjam or Jagir, these powers were exercised and the

obligations fulfilled by the Saranjamdar or Jagirdar as a servant
of the State. He could not exercise these powers against the State or
in cornpetition with the State.

Principle No, 3

Saranjam orJagir tenure by its nature was political and temporary,
personal,non-transfe~able,imparlible, and non-hereditary. It was held
during the pleasure of the Sovereign and was terminable at kis wiZl
and discretion.

(1)Political and Temporary
125. We have already noted above the classic descriptions of
Jagir and Saranjam defining it as a temporary assignment of
revenue made on political considerations and it has been so de-

i The words, "al1 the jageerdawill be feudatories of the British Government
with the exceptionof two or three whom it may be expedientto place in that
relation to the Rajah of Sattarare found in the Governor General's instructions
to EHarington, Wilson, Elphinstone. See paragrroj to 105above. In Raghojirao
v. Lakshmanrao (see paragraph131below) the Privy CounciI described saranjam
as a "temporq" grant.In Girjabai's case it quoted with approvaWilson's
description of saranjam as a temporaassignment of revenue. REJOINDER OF INDIA (II59) 69

scribed in British Indian legislation, administrative practice and
judicial decisions.
126. Saranjam and Jagir, in contradistinction to Inam1 was
described as a "Political tenure". In Ramchandra v. Venkahao (see
paragraph 113above) the High Court of Bombay dealt with the effect

of Government Legislation and RuIes on Saranjam. It quoted
Section ro of Act XI of 1852 'i... jaghirs or saranjams or other
tenures for service to Government, or tenures of a political
nature..."; Section I of the Bombay Act II of 1863: "... Lands
granted or held as jaghirs or çaranjams, or on similar political
tenure ... Section 16 of the same Act which defined "political
tenure" "tenure created/rom, or dependent @on, $oliiicaEconsider-
ation, the existenceof which shall be determined by the Government";
and Section 2 of Bombay Act VI1 of 1863: "lgnds granted orheld

as saranjam, or on similar poZitica2tenure, shall be resamable or
continuable in such terms as Government, on political considerations,
may from time tu time see fit to determine."
127. Thus, Saranjam and Jagir were held to be political tenures

and the essence of a political tenure was its temporary character
and its liability to revocation on political considerations.
128. In the latest case on Saranjam and Jagir, DaztEadraov.

Province of Bombay (see paragraph 140 below), the temporary
character of thegrant waç emphasized by the High Court of Bombay
in the following words:
"Jagirs and Saranjarns are granted or withheld at the dl and
pleasure of the Sovereign, and, if granted, the fixity of tenure is
always subjectto interraption and revocation by resumption, be it
temporary or absolute in character."

(2) Personal, non-trawsferable,impartible
129. The personal, non-transferable and impartible nature of
the grant of Saranjam or Jagir easily and logically followed from

its poLitica1and temporary and service character. In Raghojirao v.
Lakshmanrao 2, the Privy Council approved of the observation of
the High Court of Bombay on the impartibility of jagir and saran-
jam grants in the following words:
"The Subordinate Judge, after referring to the fact that some of
the villages are referrto as Jagirs in old records, is of-the opinion
that 'thatfact per se is not sufficient to make them impartible',
If this be statedas aconclusion with regard to the Jagir tenure in
general, their Lordships cannot agree with;but, upon the contrary,
they areof opinion that the followingstatement in the judgment of
the High Court is correct, namely, 'The grants were manifestly

or benefaction and not in consideration of future services to the State.ard
2 Law Reports, Indian Appeals, Volume XXXIX, 1911-1912.pages202-218.
Indian Annex F. No. 34.,7" REJOI.NDER OF INDIA (II 59)

grants in jagir of the ordinary chasacter, that is to Say, they were
personal and not hereditary,and wereresumable at plecasure.Being
$srsonal and temforary they were necessarily ivitpartible.'This
accurately distinguishes between partibility 'as such, ,and any
, consequence, whether in the direction of hereditary or primogenital
succession, which may be supposed to flow from that fact. The
impartibility of jagir lands is in truth entirely separated from the
idea of succession by the fact that the impartible lands were held
together as a unit in the hands of one man who was rendering
personalserviceto the Government of the day. It may be that upon
his death a fresh grant, again to one man, and againin retzcrafor
personalservice,was made; and it may also be that the one man

selected was in the ordinary case the eldest son; but these matters
of practice were not consequences of law, and the impartibility and
unit which attached to persona1service were not related to, but on
the contrary, were distinct from, the idea of succession by force of
law to the impartible lands."

130.In DazlEatraov. Provincial Governmentof Bombay. (çee para-
graph 128 above) the High Court of Bombay held that land held by
virtue of a saranjam could not be alienated by the saranjamdar to
a stranger.

131. We have noted above (paragraphç 103 to 105) the classic
definition of Jagir and Saranjam, particularly Saranjams granted by
the Marathas, as non-hereditary grants. The non-hereditary nature

of the Saranjam or Jag-ir grant was also brought out, as we have
seen above, in the Pnvy Council decision in Raghojirao v. Lakshman-
~ao. (See paragraph 125 above 1.) :

132. W; have already seen how the British- ~oGernment dealt
with the Maratha Saranj am or Jagir grants. (Paragraphs 107 to III
above). Certain grants. were continued as a matter of "grace and
bounty"; some were recommended to bs hereditary-not that they
were originally considered to be hereditary. The Saranjam Rules

declared every saranjam as being held as a life-eçtate. It was to be
formally resumed on the death of the holder and in cases in which
according to the decision of the Government it was capable of being
continued it was to be made over the next holder as a fresh grant
from Governrnent. Rule (II) of the Saranjam Ruleç of 1898 readç:

'Till tsëPrivy ,Council decision in Raghojiv.Lakshmanrao the earlier Privy
Council decision of Gulahdas jagjirandav Collecteoj Surai of 1878used to be
followed as authoritfor the dictum that a jagir was prima faciean estatefor
life "althougitmay possibly begranted in such terms as to make it hereditary".
The case of 1878however did not concernatrue Mogul Jagir or Maratha Saranjam,
but a g&nt analogous to that of a ~à~ir'~ranted by theEast IndiaCompany,
and istherefore to be distinguished from the clear dicta oflater cases relating to
Mogul Jagirs oi MarathaSaranjams. See inparticularthe Privy Council decision
inSheiRhSultan Sani v.Ajmodin, paragraph 135below, and Daulafraov.Province
of Bombay paragraph 140 below. REJOINDER OF INDIA (II59) 7T 1
"A Saranjam which kas been decided tobehereditarilycontinuable

shalI ordinarily descend to the eldest male representative in the
order of primogeniture, of the senior branch of the farnily descended ;
from the first British Grawteeor any of his brothers who were un- 1
divided in interest. But Governmentreserveto themselvestheir rights
for suficient reason to direct the continuanceof the Saranjam to any a
other member of the said family, or as an. uct of grace, doa fierson
Saranjam is thus continued to an adopted son he shall be liable do a a

fiay to Gouernmenta Nazaraaa not exceedingone year's ~ialue ,ofthe
Saranjam, and it shaii be levied from him in such instalments as ,
Government may, in each case, direct."

In hs Glossary, Jiilson ldefineç Nazarana as
"Agift, a present, esfiecial2yfroman inferiorto a sufierior; but the
sum was more particularly applied to sums received as gratuities,
although in fact exacted by the state on various occasions, asfees
O7 finesupm an assignmentof revenueto an individual or on appoint-
ment or succession to office,or to a Jagir ...also an exaction of
additional tributefrom a fributary defiendent."

It is significant that at the time of the making of the grant to
fhe Portuguese the Marathas exacted from them a Nazarana of
Rs. 12,000, one year's revenue grant, as is admitted by the Portu-
guese Government in Annex No. 25 to their Reply.

133.Thus it will be seen that while there wasno hereditary Saran-
jam at the time of the Marathas, the British Governmentfor reasons
of policy and expediency decided by their will and discretion to
make certain Saranjam grants continuable for al1practical purposes
in hereditary fashion. This is made abundantly clear in the report

of Maddock of the 8th November, 1891 (Indian Annex E. No. I at
II, p. 225) and in the Privy Council decision in SlzekhSultan Sani v.
ShekhAjmodin in 1891 2.
. ..
134. In his report Maddock said:
"It may safely be assumed that prior to the establishment of the
British rule, no notion had ever been entertained of hereditary
rights in the holders of these gants and it is only necessary to refer
to any of the existing Native States of the present day to Iearn that
no such principle or practice are still known there.
. In the Mahratha prjncipality of Sindiah, Jageers are constantly
., taken from one and bestowed upon another as partiality or expe-
' diency dictate. Evèn in the Rajpoot States, the Thakoors, though
holding by a far superior tenure to that of ordinary jageers, are
liable to be dispossessed and to see their Estates confiscated or
: conferred on others. And everywhere throughout India will it be
found the practice of Native Governrnents to consider land tenures

a Law fReports. IndiangAppeals, volume XX, 1891-92,pages 50-69.indian
Annex F. No. 35.72 REJOINDER OF INDIA (II 59)
of thisnature resumable at the pleasure of the prince who conferred
them, or of his successor. It is perfectly certain moreover that in

former times when one dynasty has been subverted by anotber,
the conquenng power paid iittle or no attention to the grants of its
predecessors; in the papers now submitted not a singlecaseoccurred
of a jageer granted by the predecessors of the Peishwahs; and had
the Peishwah's dominions fallen into the hands of the Nizam or
Hyder Allee or any Hindoo conqueror no consideration would have
been shown to the ancient jageerdars beyond what policy dictated
or money 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."

135. In ShekhS.ulian,Sanv i .Shekh Ajmodin, the Privy Councilheld
that a Saranjam grantedzsnder$reaty was resz~naablaet .thepLerrszrre
O# the Government. The Privy Council said:

"With regard to the expression contained in some of the sunnuds
previously cited of the grant being to the person named, 'his son,
grandson, etc., frorn generation to generation', it hs been observed
by many writers of authority on this subject that they do not, as
migkt besupposed,impart a fixed hereditary tenure. Colonel Etherid-
ge, in his preface to the narrative of the Bombay Inarn Commission,
quotes the language of Sir Thomas Munro, in a minute of the 15th
of March 18zz;in which he states that 'the terms in such documents
(sunnuds) for ever, from generation to generation, or in Hindu

grants while the Sun and moon endure, are mere forrns of expression,
and were never supfiosed either by the donor or receiver, to convey
thedurability whichtkey imply, or any beyond the wiii of the Sover-
ei.gn''; and in a subsequent minute of the 16th ofJanuary, 1823,
Sir Thomas Munro shews that while the seizure of private property
by the native princes would have been considered unjust by the
country, jaghir grants were not regarded by the people in the light
of private property. (Etheridge pg. 1).

Indian Annex E. No. I,II, p225.
a SirThomas hlunro continues: "The injunction witwhich they usually conclude
"Let thern not requirafresh sanad every year"indicateplainleynoughtheopinion.
fhat suchgrants werenot securefrorn revocation." At page 376, Rev. G. R. Gleig.
"The Life ofThomas Munuo, Bart."
At pages 386to 387 of the same book is found the following opinion of Sir Thomas
Munro :
"The land revenue in India is what the excise and custorninaEngiand-
the main source of revenue-and cannot permanently be aliened with safety
to the State. The Kings of England never could alienate the public revenue
in perpetuity norcould any Government do so. Any Government could debar
a successor frorn the use of a public revenThe existing Government rnust
always have the power calling in forth for the preservationand defence of
the State. In India there is no assemblyor publicbody between the prince
andthe people, to regulate therate or the amount or the taxation or revenue.
The sovereign himself is the only authorityby which revenue is levied and
disbursed and by which it is granted and resurned. The power to resurne as
well asto grant must be lodged sornewhere; In India where there is no other
authority itis obvious that it must be vested in the prince." REJOINDER OF INDIA (II 59) 73
Their Lordships entertain no doubt that the engagemelzts entered
intoby theEnglish Goverfimentwith theRajah ofSutura and with the
severaljaghivdars,did not impart any greuterfixity of tenurethanhad
been$reviozsslyenjoyed by thosejugkirdurs under the native rulers,
and tkattheirjughirs wereliahleto resum$tionat the will of the Gov-
, evnvnent,aithough from reasons of political expediency the EngLish
authorities would not be disposed to add to the disturbance and
confusion attending a conquest, by dispossessing the holders of
property to any greater extent than was necessary for safety."

(4) Held during the pleasure oftheSovereign and berminable at his
wiEland discretion

136. We have noted above the power of the Sovereign Grantor
to revoke the grant of saranjam or jagir at his will and discretion
and without hesitation of any kind. This is clear not only from the

classic studies of Moghul jagir and Maratha saranjarn tenure but
also from the administrative practice and jurisprudence of the
British Indian Government, which, as we have seen above, was most
anxious not to disturb the order of things but to continue, for
reasons of pubLicpolicy, the temporary and revocable grants made
by previoiis Governments. In spite of such inclination the British
Government itself resumed many grants of çaranjam and jagir l.
As we shall see below (paragraph 142) the Government of Inde-
pendent India in exercise of its sovereign nght, and with a view
to bringing about agrarian reform in the country, altogether
abolished jagir and saranjam tenures.

137. In Secretaryof State v. Girjabai: the Privy Council gave
expression to the principlc that while revoking a saranjam, Govern-
ment was entitled not only to take away the saranjamdarJs right
to collect public revenue but also to abolish occupancy and other
rights acquired by hirn in the lands in question.

138. In Secretary of State v. Laksh.mibai the Privy Council felt
that where a saranjam was a gant both of the public revenue and
of the soil,upon itsrevocation Government was entitled not only
to aboIish the right of the saranjamdar to collect public revenue but
also to eject him from the land and take possession thereof. The
Privy Council also held that "the right of the Government to Yeszlme
theselands couldnot bequestionedinthe Civil Courts".

139. The Pnvy Council decision in Shekh Sultan San< v. Shekh
Ajmodin illustrates the power of the Government to resume "Treaty
saranjams". In that case the Privy Council heldthat the saranjam

ResurnptioncouId be either temporary or absolute. The right to collect public
revenue whichhad been assigneto a grantewas resumed. i.e. taken back..74 REJOI'NDER. OF INDIA (II'59)
granted by treaty was resumable at the pleasure of the Government,
that it rested with Government to re-grant the same at its discre-

tion at the death of the holder, and that it was not within the
competency of any legal tribunal to review the decision of the
Government. We have already quoted from the judgment:
"...the engagements entered into by the English Government
with the Rajah of Satara and with the several jaghirdars, did not
impart any greater fixity of tenure. ..their jaghirs were liable to
. ,resumption at the willof the Govemment ...".

In; the case of His Highness Sir sayaji Rao, Gaekwarof'~arodab.
MadhavraoRaghunafhraoDhavaEel shortly known as the Baroda
Saranjam Case, it was held that the Saranjam of the Ruler of
Baroda could be resumed by the British Government as the Sover-
eign of the Saranjamdar. The Court held that the saranjam grant
to the Ruler of Baroda must be held to be subject to the restric-

tions that applied to a grant of that nature.
140, ln a full Bench decision of the High Court of Bombay given
on 9th January, 1946, in the case of DauEatrao MaEojarao v.Provin-
cial Governmentof Bombay the Sovereign right of the Govern-
ment to revoke saranjam and jagir grants u7as stressed in the

clearest terms. The Court held that Government as a Sovereign
power, could revoke a.saranjam or jag-irgrant at its will and plea-
sure, that the saranjam rules made by Government were des of
convenience only and could not bind the Government or restrict
its sovereign rights, and that adverse possession by a private per-
son for however long duration was nugatory before the sovereign
right of resumption. In the course of the decision the nght of
resumption of saranjam was also declared to be "a common law
right of Government". In that case the British Indian Govern-
ment had set forth certain propositions :

"(1) that every saranjam is held by the saranjamdar as a life
estate;(2) that Government have a Common Law right to resume
it at pleasure; (3) that the Law does not require Government to
exercise that right within a particular time; (4)that land held on.
saranjam tenure does not lose its saranjam character until the
tenure is terminated; so long asthe tenure subsists, no possession
ofthe land can beadverse to that tenure; on the contrary it woulbe
subject to the tenure;(5)that the character ofland held by a saran-
jam tenure does not change by effluxof tirn..."
The Court said: . .

"An examination of the authoritieç, in my judgrnent, makes it
clear that the whole structure of saranjam tenure isfounded in the

Indian Law Reports, Bombay Series. Vol. XX1928.Indian Anfiex F. N36.
a Indian Law Reports, Bombay Series, 1947,pages337-350,Indian Annex F.
NO. 27. .. REJOINDER OF INDIA (II 59) 75

Sovereign right, which can only change by conquest or by treaty.
Sofounded jaghirs and saranjams, with the feudal incidents connect-
ed with them, are granted.or withheld at the will and pleasure of
: his Sovereign power, and, if granted, the fixity. of tenure is
. always subject to interruption and revocation of resumption, be
it temporary or absolute in character. No incidents normally appli-
cable to private rights between subject and subject can fetter or
disturb the Sovereign will. Thus adverse possessio~ by ,apnvate
persoIi for however long duration is nugatory before a paramount
. resurnption or re-grant. But Mr. Coyajee on behalf of the appellant;
the saranjamdar, submits that even so the sovereign power has by
its legislative constituent bound itself by rules, and that even if
historicaily the basis of the tenure was the Sovereign will and plea-
sure, the rules have created a new quality of durability. In my
previous judgment 1 referred to these rules as being rules of con-
venie~iceonly and a further examination of them and their origin
confirms me in that view ...in my opinion the rules with which
we'are concerned cannot exhaust the general power or prevent the
Government from making a decision or determination referential
to a particular saranjam without altenng the rules with regard to
all of them."

141. The above shows quite clearly that saranjam or jagir was
revocable at the pleasure of the Government,whether the saranjam
or jagir was a grant only of the public revenue or a pant both of
public revenue and of the soil, whether it waç a grant by treaty or
a grant to a ruling power.
,.,

The Attitude of the Government of Independent India towa$dsJagir
aad Saranjam Grants ,

142. After the independence of India the various land tenures
existing in India continued for some time. However it was the

declared policy of the new Government to bring about agrarian
reform in the country. Consequently, the public revenue rights of
zamindars, saranjamdars, jagirdars and inamdarç were abolished
by the Government. In 1952 new mles entitled Bombay Saran-
jams, Jahagirs and other Inams of Political Nature, Resumption
Rules, 1952, were framed and these superseded the Saranjam
Rules of 1898. With eflecijrom the1st November, 1952, al1saranjams,
jagirs and ~olztzcaEinams in the State of Bombay wcre resumed by

Governmelztand al1rights which had existed beforethat date in res?ect
of those grants were extinguished 1.
Similar laws and regulations were enacted for ot-r parts of
India. The result is that there are now in India no remnants of the
rnedieval land tenures which were found and continued by the
British Government in India.

. ,. .
1 See G. D. Patel,"~he ~kdiaa Lalid Pvoblem'Gd ~t~i~lation", b54,pay !
48-54, lndiaAnnex E. No. Iand P'.No. 37. . . REJOINDER OF INDIA (II59) 77

The Government of India have demonstrated above that ik was
in the nature of the grant O# saranjam and jagir that they coztld
be revoked at the pleasure of the sovereign grantor. The saranjam
or jagir by definition was a revocable grant. Therefore the
Portuguese suggestion that they could not be revoked contradicts
al1the authority that we have cited above unless the Portuguese
Government mean that as a historical fact al1 grants of
saranjam or jagir were not in fact resumed. That, in the submission

of the Government of India, is quite a different thing. The fact
whether al1 the saranjam or jagir grants that were made by the
Maratha and Moghul rulers in the 17th and 18th century were
actually revoked or not is quite distinct from the fact that the
nature of the grant was such that the grantor had the power to
revoke it at will.

147. In the same paragraph 7 of the Annex No. I of the Portu-
guese Reply the Portuguese Government stated that :
"there were 'saranjams' which irnplied the donation even of the
land usedto produce certain revenues;and by the sideof 'saranjams'
urhich implied the total, hereditary and everlasting transfer of
lands grantedJ'.

The Government of India would like to ask, what is the authonty
of the Portuguese Government for asserting that a saranjam could
be, "the total, hereditary and everlasting transfer of landsgranted" ?
This assertion of the Portuguese Government contradicts the
clearest dicta on the point. At paragraph 12 of the same Annex, the
Portuguese Government persists in the assertion-without referring
to any authority-that saranjams could be grants of the soil "in
perpetuity and hereditarily". The Government of India would like
to refer to Principle II (3)and the decisions cited under that Prin-
ciple. In the Privy Council decisions of Raghojirao v. Lakshmanrao
and in Shekh SzcltanSani v. ShekhAjmodin it was held quite clearly
that a saranjam grant was non-hereditary. These decisions relied

on several authoritative works some of them dating from 1817, in
particular the opinion of a great Indian administrator, Sir Thomas
Rlunro, to the effect that the Rulers of India did not know of any
saranjam or jagir grant which was hereditary. The Government of
India also cited the reports of Etheridge and Maddock, both
'experienced officers of the British Indian Government, to the effect
that the Maratha grant of saranjam was a conditional, temporary and
non-hereditary grant l.

148. The Portuguese Government devoted in the same Annex,
paragraphs 8, g, IO and II to showing that it was possible for a
saranjam and jagir grant to include in certaincases a grant of the
soil in addition to the grant of the public revenue. The Government

The opinionsof ~ir'~homas Munro, much quoted by Indian Courts, will be
found at Indian Annex F. No38.
7of India does not dispute this at all. In fact in paragraph 56 of the
Counter-Mernorial it said:
"a saranjam was a grant only of the royal share of the revenue and
unlessexpressly$rovidedfor did not grant any proprietary interest
in the soil".

It will be seen from paragraphs 113 and 114 above, that this state-
ment of the Government of India is clearly supported by authority.
Saranjam or jagir grants were in almost al1cases grants only of the
public revenue; in very rare cases they included grants of the soil
also. The decision in The Secretary ofState v. Lakshmibai, laid down
that there was no presumption either way and it was to be seen
from the documents whether a particular grant was a grant of the
revenue only or included a grant of the soil also. But in the very

snme case, whiclz we note is beilzg reEiedupon by the Portztggdese
Governrnent,it was also heEdthat thegrant O/saraniam whether it was
a grant of the revenue only or a grant alsO/ the soil, was revocableby
the Governmentat itswill and discretion.Inthat case it was held that
in the exercise ofits sovereign power the British Government could
not only revoke the grant of saranjam which included grant of the
soil also, but as a consequence of the revocation the Government
could also eject the holder of the grant from the lands in question.
(See paragraph 114 above and Indian Annex F. No. 29.)

149. The Government of India would therefore like ta ask how
it helps the Portuguese Government to draw a distinction between
a grant of saranjam or jagir which was a grant only of a share of
the public revenue and a grant of saranjarn or jagir which was also
a grant of the soil when in both cases itwas a g-rant which by
definition could be r'evokedat the will and discretion of the Grantor.

150. In paragraph 14 of the same Annex the Portuguese Govern-
ment states that :
"The Iegal nature of the concessionhas always to be judged in
the light of the documentswhichrelate to it andin the lightofthe
facts whichsurround it."

The Government of India has shown in the Counter-Mernorial
and will show further in this Rejoinder that judged in the light
of the documents which relate to the grant and in the light of
the facts which surround the documents, particularly the inten-
tions of the Marathas who were the grantors, it is clear that the
legal nature of the concession was a saranjam -or jagir grant of
public revenues in villages under Maratha sovereignty. Documents
emanating from the grantor are the foundation of the grant and
define its nature. The Government of India has already shown
and wiil further show that the Maratha documents clearly define
the nature of the grant, The sum total of the rights of the Portu-
guese in the Maratha villages were contained in the Sanads which REJOINDER OF INDIA (II 59)
79
were charters from the Maratha Government and it was from these
sanads exclusively that the Portuguese derived their temporary,
conditional and precarious rights (see Counter-Mernorial, and
paragraphs below) .

151,The second assertion which the PortugueseGovernmentmake
in paragraph 87 of their Reply is that the legal incidents attached
to the grants of Saranjams and Jagirs were "inapplicable to the
concession in question because the grant of jagir or saranjam to the
Portuguese Government was guaranteed by treaty and made in
favour of a sovereign State", The Portuguese Government stated
there that it had always been understood that saranjams guaran-

teed by treaty, "treaty saranjams", constituted a special class the
legal nature of which depended solely on the treaty. This line of
argument is taken up in paragraphs 15, 16 and 17 of Annex NO. I
to the Portuguese Reply where the Portugese Government seeks to
draw a distinction between what they called "ordinary saranjams"
and "treaty saranjams". In this connection the Portuguese Govern-
ment cite selected quotations, torn from the context, from the
report of Etheridge, a book by Gejji and the book by Patel. The
purposes of these quotations is to show that saranjams "guaranteed"
or "protected" by treaties were considered to be a special class and
that the discussion on Saranjam and Jagir in the above mentioned
works did not apply to them for the reason that they belonged to
a special class. From these selected quotations the Portuguese
Government proceed to infer that the incidents attached to "treaty

saranjams" were different from those attached to what are calIed
"ordinary saranjams". The texts however show that the distinction
between the two classes Iay not in their inherent nature but the
manner in which the British Government, as a matter of grace,
bounty and public policy decided to deal with them. The Govern-
ment of India has already mentioned in paragraphs 107to IIO above
how, on the assumption of British power, certain saranjams were
continued and others were revoked, and rules of expediency were
laid down by the British Government for the guidance of its officers.
The Government of India asks the indulgence of the Court in
quoting in full a portion from the book by Patel a part of which
has been relied upon by the Portuguese Government. At page 40
it reads :

"Historicai background.
It isnot.necessary to trace the history of the familieswho held
the saranjams or dilate upon their vicissitudes.For detailedtoy,
the reader is referred to Grant Duff's"History of the Mahrathas'.
For our purpose, it is important to knowhow they were treated by
the British on their accessionto power. It is well-knownthat the
Honb'lethe Commissioner Mountstuart Elphinstone first submitted
to the Governor General on the 18th June 1818his 'generalreview
. ocountry'.andre'suggestions on the.plans which seemed best suited 80 REJOINDER OF INDIA (II 59)
to completion of that object'. One of the most important subjects
discussed was about the suitable method of providing Jahagirdars
and Saranjamdars whom the events of the war had deprived of their

power and possessions. The method adopted was by permitting
them to retain their persona1 holdings and by pensioning on moder-
ate sums the few not so provided for. Elphinstone even recom-
mended grant of pensions to Ministers of the State, who were reduced
to poverty and want by the persecution of Baji Rao. On this general
basis, the arrangement with the saranjamdars was proposed. But
there were exceptions like the Pathwardhan Chiefs, Apa Desai, the
Pant Sachiva and others in both the Deccan and Southern Maratha
Country, whose possessions were subsequently fixed on different
principles. They formed a special class being protectedby treaties.
Theirs were called the treaty saranjams. We are, however, not
concerned here with this class butwith a class of gants which were
not covered by any treaties and were called non-treaty Saranjams.
It should be remembered that Elphinstone's arrangement was
against any permanent alienation of land revenue. The pith and
substance of the arrangement was the 'convenience of Government
and the accommodation of the Jahagirdars'."

It will be seen thus that the pith and substance of the arrangement
was the convenience O/the British Governmentand the accommodalion
of the jagirda~s and that the arrangements were based purely on
principles of expediency. The Government of India has already
referred to the Privy Council judgment in the case of the Waikar
Saranjam to show that there was no distinction betweenan ordinary

saranjam and a treaty saralzjanz as regards its inherently revocable
nature. In both cases the rights to coliect revenue together with the
proprietary right in the soil, where granted, could be extinguished
by the Government at itswill and discretion. For the convenience
of the Court the Government of India will set out here the official
summary of the judgment in ShekhSultan Sani v. Shekh A jmodin :-

"Grant~ by Treaty-Saranjam and Inam tenures-Political Tenzkre
-Jurisdiction of Civil Tribunals-HELD, with regard to both the
saranjam and inam tenures in suit, that having been originally
granted by treaty to be held on a political tenure, they had contin-
ued to be so held, with the result that they were resumable at the
pleasure of the Government. Such right of assumption'hsd been
recognised by legislation (see Bombay Act 7of 1863).It accordingly
rested with the Government to re-grant the same at its discretion
on the death of their holder, and it was not within the competency
of any legal tribunal to review its decision."

Thus it will be seen that so fur as the British Government was
concerned atreaty did not render a saranjam any more sacrosanctthan
it was before. The Government of India would like to refer in this
connection to the extract from this judgment given at para-
graph 135 above.

152, The Government of India have already referred to the
Baroda Saranjam Case (see paragraph 139 above). In that caseit was REJOINDER OF INDIA (II59) 81
recognized that theRzclerof Baroda-who was consideredthesovereign
of his possessions-coubd enjoy a grant of saraniamin British Indian
territory, manage his saranjam through agents, and not be able tu
exercise in the saranjam villages the rights of sovereignty which he

coztldexercise in his possessions. Itwas clearly recognized in that
case that the Ruler of Baroda to the extent that he held a saranjam
stood in the relationship of a saranjamdar to the British Govern-
ment (see paragraph 139 above, Indian Annex F. No. 36).
Furthermore, it is a historical fact that the hlarathas freely
grsnted saranjams and jagirs to other rulers of India, rendering
them their sarsnjamdars and jagirdars, and that they revoked
these grants with equal facilityIt is also a historical fact that inthe
18th century the East India Company (which was the British
Government in India before 1857) received jagirs from the Moghul
Government and stood in the relationship of jagirdar tothe Moghul
Government of the time. It is also a historical fact that the British
in India never laid claim to rights of sovereignty over saranjam or
jagir villagestill the time they annexed the territories in question
on conquest, lapse or other ground. (Indian annex F. No. 38; the
opinion of Sir Thomas Munro.) There is also an incident on record
of a saranjam having been granted by the Marathas to the East
India Company and having been resumed by them for several
years. (Indian Annex F. No. .39.)

153. It is therefore futile for the PortugueseGovernment to draw
distinctions between different kinds of saranjams. A saranjam or
jagir by its very nature was a temporary grant of the public reve-
nue. Sometimes the grant included the proprietary interest in the
soil; but in every case, whether it was a proprietary or non-pro-
prietary grant, it was a grant held at the discretion of the sovereign
and was conditional and precarious. In no event could a grant of

saranjam or jagir amount to a cession of territory in sovereignty.
154. In support of its strained and untenable interpretationof the
extract from Patel, the Portuguese Governrnent has cited the
judgment of the High Court of Bombay in Daulatrao v.Province
of Bombay (see paragraph 140 above and Indian Annex F. No. 27)
from which ithas extractcd only the following sentence:

"the whole structureofthe saranjam tenure is founded in the sover-
eign right which can only be changed by conquest or treaty".
The Portuguese Governrnent emphasized the words: "which can
'only be changed by conquest or treaty," and says that the judg-

ment of the High Court of Bombay enunciated the doctrine that,
by a grant of saranjam, (in the words of the Portuguese Govern-
ment), "the right of sovereignty itself can be negotiated and
conceded without any hitch", and that a saranjam established by
treaty provided for the "transfer of sovereignty which could be
practised freely". The Government of India cannot help but remark 82 REJOINDER OF INDIA (II 59)

that this is a rnanifestly incorrect interpretation of the decision in
Dawlatrao v. Province-of Bombay. The Government of India has
quoted that decision in paragraph 140 above and given it in full at
Indian Annex F. No. 27. A reading of that decision shows quite
clearly thatthe reference to "the sovereign right" is to the sovereign
right of the grantor of the saranjam tenure, and that it was clearly
held therein that it was the right of the sovereign to revoke a
saranjam grant at his will and discretion and that the sovereign

\vas not bound by administrative rules which he may have laid
down for purposes of convenience for deciding which saranjams he
should revoke and which he should continue for the time being.
The Government of India would like to quote here the officia1
summary of the judgment :
"Saranjam tenure, incidents of-Saranjam rules, operation of-
Adverse possEssionof saranjam land-Resumption of lands by levy
offull assessment payable to Governrnent-Lands ceaseto be part
of Saranjam lands and become Khalsa lands-Bombay Revenue
Jurisdiction Act (X of 1876,)S.12.
The whole structure ofsaranjam tenure is founded in the sover-
eign right, which can onIy change by conquest or by treaty. So
founded, jagirs and savanjams, with the feudel incidents connected
with them, are grantedor withheld at the wilEand fileasure ofthe
sovereignpower, and, if granted,the fixity of tenure is always subject
to interruption and revocationby resztmfidion,be it temporary or
absolutein characterl.No incident normally applicable to pnvate
rights between subject and subject can fetter or disturb the sover-
eignwill.Hence adverse possessionby a private person for however
long a duration is iiugatory before a paramount resumption or
re-grant.
The Saranjam rules made by Government arerules of convenience
only.Theydo not exhaustthegeneral jbowerofGovernment l or prevent
Government from making a decision or determination referable to
a particular saranjam without altering the rules with regard to
al1of them."
Itwill thuç be seen that the decision in Daulatrao v.Province of
Bombay is a complete contradiction of the Portugueçe contentions.
The judgment points out quite clearly that a saranjam was revo-

cable at the pleasure of the sovereign. The meaning of the sentence
"the whole structure of the saranjam tenure is founded in the
sovereign right which can only be changed by conquest or treaty",
refers to the right not of the grantee but of the grantor as can be
clearly seen from the judgment itself. The sentence meanç that
while sovereignty can be changed by conquest or by treaty of
cession, a saranjam is dependent on the will of the particular sover-
eign who may happen to be there by title of conquest or treaty of
cession. In the submission of the Government of India that is the
plain meaning of the sentence quoted from the decision which the
. Portuguese Government pretends not to understand.

Our italics. REJOXNDER OF INDIA (II59) 83

155. Paragraph 17 of Annex No. I of the Portuguese Reply
concludes the "study" of the Portuguese Government of the nature
of jagir and saranjam grants, except for paragraph 18 in which the
Portuguese Government purport to give a summary of the Annex.
This summary in addition to repeating in brief the points in the

previous seventeen paragraphs contains the baseless and gratuitous
assertion that :
"it is not the simple concession of revenue that the Marathas had
granted to the Portuguese but rather a territorialgrant, and this
grant was not,made in an insecure way with the possibility of
revocation, but rather in the nature of an unconditional concession
granted in full soveretglzty".

Thus, without giving any authority of any kind and immediately
after speaking of a saranjam grant as a grant of the revenue and
sometimes of the soil, the Portuguese Government proceed to the

conclusion that the Marathas granted to the Portuguese a territorial
grant, and that it conveyed to the Portuguese full sovereignty.The
Government of India would like to cal1the attention of the Court
to this fact, namely, that whiIe the Portuguese Government has
called Annex No. z a "Study" it haç inserted there gratuitous and
sweeping assertions in support of which it has not set out any facts
or reasons or authoritiesl,

156. In the same summary the Portuguese Government states
that the word "jagir" is not foundin any bilateral treat y betweenthe
Portuguese and the Marathas. The Government of India have
already stated that there was no bilateral treaty between the
Marathas and the Portuguese. At the same time the Government of
India has already pointed out (see paragraph 96 above) that the

word jagir isfound in a doczzmentpurporting tobea textof the alleged
freaiy itself emanating from the Portuguese Government.The Govern-
ment of India will refer to this again below (seeparagraph 193).
157. In paragraph 5 and 6 of the Annex No. I of the Portuguese

Reply, the Portuguese Government are driven to rely on the
etymological meaning of saranjam or jagir. They cite in particular
the dictionary of Molesworth. But the meaning given in Molesworth

In Annex No. 2 of the PortugueseReply the Portuguese Government have
proceeded in theame fashion. In paragrap7 ofthat Annex while speaking of the
meaning of the word Dumala in the Maratha documents relatingto the grant,
the Portuguese Government admit:
"we do not hesitate to admit that the word could be considered in its ety-
rights at the same tim".ninof 'land on which severai proprietors exercised

They also admit that the word connotes a revenue grant. But they dispute that
the meaning of the word asgrant resumable at the pteasure oi the sovereign and
eignty from the Marathas to the PortuguesThey accomplish this by translatingover-
"Durnala village" as "alienated village", and trans"alienated village" as a
"village transferrto another sovereignty".also does not help them. Molesworth defines jagir as "an assign-
mentby Governnzeno tflands or revenues", and he describes saranjam
as "villages and lands granted in inam to persan srom whom the
maintaining of forts or troops for the publis cerviceisrequired".
The Government of India is entitled to ask whether these defini-
tions show that saranjam or jagir meant "cession of territory in
sovereignty" The Government of India need not stress the obvious

fact that instead of finding the meaning of saranjam or jagir grants
from works of authority the Portuguese Government has sought to
vindicate its a priori interpretation from etymological meanings.
The Portuguese Government has gone to the extent of saying that
the word saranjam could mean "restoration". The Government of
Indian would like to ask the Portuguese Government if thereis any
dictionary available of whatever value or significance which gives
the meaning of saranjam as"restoration" ? The Portuguese Govern-
ment also statesin paragraph 4ofthe same hnnex that the Marathas
did not use the word saranjam in al1 their documents, or in al1
paragraphs of their documents, but only in headings to the docu-
ments, and occasionally in the body of the documents. The Govern-
ment of India would like to submit that this argument, because
of its obviously unsustainable nature, merits no answer. The
description of the document in the heading governs and helps in the
interpretation of its contents. The Portuguese Government have
unfortunately to face the fact that the grant is described as Jagir
not only in the Maratha documents, sanads, memoranda, orders,
Account papers, order of revocation, et cetera, but also in a docu-
ment emanating from the Portuguese Government itself. It is
inconceivable that if the grant was meant to be a cession of terri-
tory with sovereign rights over it or a "restoration", etcetera, of
the oId "Province of the North", the intended grant should be

described as "Jagir" in the Portuguese text of the alleged treaty.
Nor, in view of the fact that the grantwas consistently described in
Maratha documents as saranjarn and jagir, could it be suggested
that the word "Jagir" had crept into the Portuguese text by
accident.
158, The Government of India would like to observe that while
the Portuguese Government seems to contend that the words
saranjam or jagir are capable of a meaning other than their ordi-
nary and established meaning, it has brought fonvard no authority
in support of such contention. Nor has the Portuguese Govern-
ment made any effort to present to the Court a serious and accurate
study of the concept of saranjam and jagir in support of such
contention. It is this attitude of the Portuguese Government which
has obliged the Government of India to set out in detail above the
legal and historical authorities indemonstration of the established
meaning and connotation of saranjam and jagir grants. REJOINDER OF INDIA (II59)
85
159. The Portuguese Government has devoted Sub-section Ir1 of
the "Facts of the Maratha PeriodJJin the Portuguese Reply to the
nature of the grant made by the Marathas to the Portuguese in
1783 and 1785. The Government of India will now proceed to
reply to the Portuguese arguments made in that sub-section para-
graph by paragraph.

160. In paragraph 76 the Portuguese Government state that it
was by Article 17 of the alleged Treaty that the Maratha Govern-
ment "ceded" to the Portuguese the villages of an income of
Rs. Ia,ooo and these villages were specified in 1783 and 1785.
The Government of India has already shown that there was no
treaty in1779 between the Marathas and the Portuguese. It has also
been shown that the document forwarded by the Portuguese to
the Narathas spoke of a revenue grant known as jagir. The Govern-
ment of India has shown that in actual fact thegrant of the revenue
of the villages in question was made,not by treaty, but under sanads
irnplying clearly a grant from a sovereign to a subject, vassal or
feudatory. In the same paragraph 76 the Portuguese Government
dlege that not the slightest reservationconcerning the sovereign
rights of the Marathas in the villages in question appeared in any
of the known texts of the alleged treaty; nor, aIlege the Portuguese
Government, does there appear any clause reserving to the Maratha
sovereign the right to revoke the concession unilaterally. Further,

the Portuguese Government Saythat reservations of this kind would
have been valid only if they had becn made clearly and expressly.
They Saythat if the Marathas merely said in the alleged treaty that
they conceded to the Portuguese "villages of a revenue of
Rs. IZ,OOO'',it is because they ceded them voluntarily and in full
sovereignty and must be so held to have ceded them.
161. The Portuguese Government proceed with its argument as
if it had proved in the first place that the Prlarathas hadin fact
ceded territory to the Portuguese in 1779 or 1783 or 1785. They
proceed as if the cession of territorys to be taken for granted or
was to be presumed. According to them, unless reservationsexpres-
sly made by the Marathas appear from the documents or are
proved by the Government of India, the proof of the cession of

territory cannot be challenged. The Government of India submits
that this is a totally erroneous approach. The burden of proving
that the Marathas ceded territory to the Portuguese under an
alleged treaty of1779 lies squarely on the Portuguese Government.
The argument of the Portuguese Government proceeds on a novel
principle, namely, the principle that cession of sovereignty must be
presumed and that a grant must be presumed to be a cession of
territory in sovereignty unless a reservation to the contrary appears
clearly from the treaty. The Government of India submits that
contrary to what is asserted or implied by the Portuguese Govern-
ment, a title to cession of territory in sovereignty cannot be pre-86 REJOIKDER OF IKDIA (II 59)
sumed but must be proved by the party which allegesit. Itis there-
fore not for the Government of India to furnish evidence and prove
that the Portuguese did not receive a title to cession of territory
sovereignty in 1779. It is for the Portuguese Government to pro-

duce evidence and prove that itreceived a title as a Sovereign to
the hlaratha territories of Dadra and Nagar Aveli by avalid cession
made to them by the Maratha Government.

162. Nor can it be said that it was for the Marathas to make
express reçervations regarding their sovereignty and that unless
they made such reservations, a grant of revenue made by them
could be interpreted as a cession of territory.

163. However, quite apart from the question of the onus of proof,
which, the Government of India submits, is entirely on the Portu-
guese Government, the Government of India has demonstrated in
the Counter-Memorial that not only is nothing to be found in the
alleged treaty to show that the Marathas ceded or intended to
cede any territory to the Portuguese Government, but that al1
the evidence points the other way and shows that the Marathas
granted to the Portuguese Government in 1783 and 1785 a tempo-
rary, revocable and conditional grant of a share of the public
revenue from villages situated within Maratha sovereignty, and
that the grant was dependent on the performance of certain services
by the Portuguese Government.

164. The Government of India submits that the nature of the
grant made by the alarathas tothe Portuguese was made abundant-
ly clear in the Maratha documents of the grant. As has been seen
above in Sections 1 and II Portugal was well aware on the 4th May,
1779 the day on which çhe drew up her text of the alleged treaty,
that the Marathas did not contemplate granting anything more
than a jagir. The Portuguese officia1texts of the 4th May, 1779,
speak in the Portuguese language of a "contribution of Rs. rz,ooo"
and in the Maratha language (in the salne document), of a "jagir of
Rs. 12,ooo". In their document of the 17 December, 1779, the
Maratha Government clearly set out that the grant contemplated

was a grant of revenue, that the grant was to be made in such
manner that the authority and jurisdiction of the Maratha Govern-
ment was to remain unimpeded and that the Portuguese Govern-
ment were not to raise any building in the villages from which
revenue was to be collected by them. The so-called Articles of
1783, which the Portuguese Government appended at Annex 32
of the Reply, and which they Say are of a bilateral nature, give to
the Portuguese the right to collect revenue limited to the surn of
Rs. 12,000. Any amount collected above that sum was to be sur-
rendered to the Treasury of the Maratha Government. What do REJOINDER OF INDIA (II59)
87
these conditions signify? Assuming for a moment that the Portu-
guese Government is entitled to ask what reservations were made
by the Maratha Government, the answer is clear; the Marathas i
defined the grant as one of revenue only; the Portuguese Govern- 1
ment well understood in 1779 that it was a grant of jagir; the
Rlaratha Government expressly laid down that its sovereignty !

imarat or building; the right of collection of revenue was limited to 1
Rs. ~z,ooo only. Besides theçe conditions, there were many others 3
which have already been enurnerated by the Government of India
in the Counter-Mernorial and will be found below in paragraph 197.1

165. In the second place, the right of the Maratha Government to
revoke the concession unilaterally was inherent in the nature ofthe

concession made. The Governrnent of India has submitted that there
was no treaty entered into between the Marathas and the Portu- ,
outside the alleged treaty and by a sanad. However, assuming for .

the sake of argument thatthe grant could be said to be made under 1
tthe grantd was subject to the conditions set out in the allegedn of ,

treaty. The continuation of the grant was dependent on the ful- 1
filment of conditions stipulated in the alleged treaty. The moment 1
there was default in the fulfilment of the conditions, even assurning 1
the existence of the alleged treaty, the concession could be with- ,
drawn validly by the Marathas and in full keeping with inter-
national norrns. 1

166. We have already seen that the grant of saranjam or jagir was
a temporary, conditional and revocable grant. It was a grant of
revenue rights; in rare cases it was a grant of proprietary rights but
in no case was it made in such manner that it could not be revoked
or cancelled, Nor could a grant by way of saranjam or jagir ever
be a cession of territory in Sovereignty, When it was a conditional
grant it was clearly and positively revocable on the non-fulfilment
of the conditions. Assuming the existence of the alleged treaty,
Article 17 clearly speaks of the condition of friendship. It was in
return for friendship, the continuation of friendly relations and the
performance of service, that the grant was intended to be made to
the Portuguese. As we shall see below, the Maratha text of the
~7th December, 1779,of the alleged treaty spoke of the condition of
"future" friendship : "...assurances that the Firangee ...would
in fature be most friendly". In paragraph 13of Annex No. I ofthe
Portuguese Reply already referred to above, the Portuguese Govern-
ment Saythat the saranjam granted to the Portuguese Government
was "for political reasons" and they rely onthe Saranjam Rules 1898

lOur italics.88 REJOINDER OF INDIA (II59)
as showing that under those rules "inam granted onpolitical consider-
ations shall be continued in the terrns of the sanad or order creating
the grant". The Portuguese Government admits that sanads and
orders create the grant and govern its terms. However, the Portu-

guese Government appears to have overlooked the fact that a
political grant was also a service grant and a conditional grant.
The conditional nature of the grant is clearly seen from the docu-
ments of the Maratha Government.At paragraph 96 of the Counter-
Mernorial, the Government of India have mentioned the account
papers of the Maratha Government. in which the revenues of the
saranjams of Dadra and Nagar Aveli were shown and accounted
for. In these papers the amount annualIy realised from the villages
and collected by the Portuguese Government was entered as
"expenditure on foreign affairs concerning the Portuguese of Goa".
This expenditure was annual and could clearly be stopped if the
Portuguese ceased to maintain friendly relations or to perform the
services of feudatory and tributory. In factt was stopped when, in
the words of the Maratha Government, "of late, no services to the
Sarkar are rendered by the Firengee". (See Indian Annex C. No. 31,

1, P. 293.1

167. In paragraphs 78 and 79, the Portuguese Government
appears to agree with the Government of India that the intentions
of the Marathas who were the grantors areimportant in ascertaining
the nature of the grant made to the Portuguese in 1783 and 1785.
The Government of India is glad to find that the Portuguese Govern-
ment agrees with the Government of India that it is the intention
of the grantor which is decisivein the interpretation of the nature
and the extent of the grant made by him. The Government of India
submits that the intentions of the Marathas are to be seen most
clearly from thesanads under which the grants were made and from
the administrative orders issued by the Marathas in connection
with these grants. The intention of the Marathas is also to be
gathered from hlaratha practice subsequent to the grant and from
Maratha documents preceding the grant. The sanads which are
most relevant to the point in question are those ~vhichwere issued
in 1780 (Counter-Mernorial paragraphs 85 to 89 and Indian Annex
C, Nos. 8, 9, IO and II), in 1783 (Counter-Memonal paragraph 92

and Indian Annex C, Nos. 12, 13,14 and 15)and in 1785 (Counter-
Mernorial paragraphs 93 to 96 and Indian Annex C. Nos. 16, 17 and
18). Al1 these documents which describe the grant as saranjam,
disclose cIearly the purely revenue character of the grant and they
impose conditions and restrictions ~vhichwere the normal accom-
paniments of revenue gants of this nature.
At paragraph 79,the Portuguese Government seeks to establish
the intention of the hlarathas from the Maratha document of the
17th December 1779. This is the first tirne that the Portuguese
Government has relied on the original language of the Maratha REJOINDER OF INDIA (II59) 89
document of the 17th December, 1779. It may be recalled that in

the Memorial the Portuguese Government relied exclusively on the
mistranslation in Portuguese by Wagh of the 6th January, 1780.(See
paragraph~ 12 and 13ofthe Portuguese Memorial.)Now,however, the
Portuguese Government states that thetext most qualified to define
the intention of the Maratha Government is the very text of the ori-
pnal version in the Marathi language dated the 17th December, 1779~.
While the Government of India takes note of the fact that the
Portuguese Government recognizes the authority of the Maratha
documents, it is unable to find in Article 17 of the document of 17th
December, 1779, any intention on the part of the hlarathas to cede

territory in sovereignty to the Portuguese Government. Article 17
of the Maratha document of the 17th December, 1779, speaks of
the Portuguese having agreed to maintain friendship with the
Maratha Government and to continue that friendship in future on
condition whereof a grant was proposed to be made. This grant is
described as "the assignment ofvillages ofthe revenue ofEs. 12,ooo".
The same Article imposes conditions; the grant was to be made in
such manner that the authority and jurisdiction of the Maratha
Government was to 'be unrestricted and the Portuguese were not

to raise any buildings in the villages from which revenue was to be
collected.

168. The Portuguese Government expresses astonishment when
faced with the statement of the Government of India in the Counter-
hlemonal ai paragraph 80 that this text "expressly limits the grant
to a temporary assignment of revenue in a tenure known as jagir or
saranjam". On the contrary, it would be legitimate for the Govern-
ment of India to express astonishment that the Portuguese Govern-
ment should ask us to accept that by the above words they received
from the Marathas title to the cession of territory in sovereignty.

169. It is signifiant that in paragraph 82, the Portuguese Govern-
ment maintains that the Portuguese document of the 4th May, 1779,

is of "secondary interest". This attitude of the Portuguese Govern-
ment is in striking contrast with the stand taken throughout the
Reply in which they seek to rely not on Maratha documents but on
Portuguese documents for giving interpretation to the nature of the
grant. For example, they cite a very large number of Portuguese
documents to show the historical antecedents of the alleged treaty.
(Portuguese Reply paragraph 37 to 58 ;Portuguese Reply, Annexes
3 to 25.)WhiIe, therefore, they do not have any hesitation in relying
on Portuguese documents to show that the Portuguese political
ambition ever since the loss of the old "Province of the North" was

to regain it and that therefore the alleged treaty of 1779 must be

translation, reads "it is obvious that its contents cannot prevail against the Mavalhi
originaolf which it is simply a translation". REJOINDER OF INDIA (II 59)
go
seen in that Light,they are reluctant to rely on the Portuguese text
of the alleged treaty. In paragraph 82 they refrain from quoting
the full Portuguese text of Article 17. Article17 in the Portuguese
document reads :

"As the Majestic State has evinced the greatest friendshipto-
wards this Pandit Pradan, as proved by the Attorney, Pandit
Pradan has agreed to make a contributioniDaman of twelvethousand
Rufiees starting fromdhisyear through hisDaman jurisdiction by
virtue of which he shall specifically give to State the Sanad or
confirmatory order of the villages."

170. The Government of India is entitled to ask if the words
"contribution in Daman of twelve thousand rupees starting from
this year" denote cession of territory in sovereignty. The Portu-
guese Government is completely silent about these words. In the
Submission of the Government of India these very words in the
Portuguese text of the alleged treaty are destructive of the entire
Portuguese argument.

171, Furthermore, the Portuguese Government refuses to attach
any value to what was described by the Government of India as
Dhume's translation of the Portuguese text of the 4th May, 1779
(Counter-Memorial, paragraph 69), and which is now found to be
a document, within the knowledge of the Portuguese Govemment
at Goa. The Portuguese Government pretends that it has no know-
ledge of that transIation and cannot therefore admit its relevance.
The Portuguese Government says again and again, in paragraph
after paragraph, that the word saranjam or jagir is not to be found

in any of the versions of the alleged treaty. Thus, as we have seen,
it says in paragraph 18 of Annex No. I of the Portuguese Reply
"the grant cannot be considered as a saranjam because this expres-
sion is not used in any text of a bilateral legal nature"; and at
paragraph 71, "the said translation. ..was made subsequently to
the conclusion of the treaty. We do not know under what conditions
it was made, nor when, nor by whom, nor for what purpose". At
paragraph 88 which summarizes the Portuguese contentions in
Sub-section III, the Portuguese Government states:

"the concession granted to the Portuguese by Article 17 of the
Third Treaty of Punem of 1779 was not classifie'Jagir' or 'Saran-
jam'in the originalversionsofthe Treaty. This name was given to
it only subsequently by the Marathas in a later translation and on
their sole responsibility which, duta this fact, hano legal value
vis-à-visthe Portuguese".
It is unfortunate for the Portuguese governments that the
Government of India has been able to find a photographic copy
of the Portuguese text of the 4th May, 1779 (see paragraph

96 above). This text, as we have seen above, has the Marathi
translation contained in it, articleby article. It is in this Marathi REJOINDER OF INDIA (II 59) 9'

translation of the Portuguese text, which forms an'integraI part of
the Portuguese document, and which is signed, confirmed and
approved by two successive Portuguese Governors-General, that
the grant is described asjagir". Itis not that the Government of
India has invented Dhume's translation or that the Blarathas had
a translation carried out after the 17th December, 1779. Wlzeiher
the tra?zslationwas made ut Goaby Wagh or by Dhwne at Poona is
immaterial: the materialfact is 2hatit was thePortuguese Government

which describedthe grant as jagir in their own docu~ent, which docu-
ment, by their own admission, they setotheMaratha Governmentas
the basis of lzegotiatoflthe allegedtreaty. (See Portuguese Reply,
paragraphs 86 and 88.) The Government of India has already
expressed astonishment at the extraordinary procedure followed by
the Portuguese Government in suppressing this document from the
Court. It will therefore refrain from making any further comment

on this conduct of the Portuguese Government.
172.The Government of India has pointed out that the words in
Article 17 of the Maratha document of 17th December, 1779,
clearly contradict the Portuguese assertion that the Marathaç
intended cession of temtory in sovereignty to the Portuguese. The

Government of India'will demonstrate this from recourse to the
Marathi language of the document. With the indulgence of the
Court, the Government will .set out below, in Latin script, the
Marathi language of ArticIe17 of the document with its translation,
word by word:

(1) (2) (3) (4) (5)
FIRANGEE YANI SARKARAT SNEH BAHUT CHALVILA
The Portuguese with the sarkar jl-iendship much conducts

(6) (7) (8) (9) (10)
VAH PUREHI VISESH SNEH CHALVINAR
and in future more friendship will conduct

(11) (12) (13) (14) (15)
YEH VISHI NARAYAN VITHAL DHUME YANI NISHA KELI
this subject , Narayan Vithal Dhume assurance made

(16) (17) (18) (19) (20)

TYAJE VAROON DAVANES SAL MASKURA BARA HAZAR RUPIA
PASSUN
on account for Daman froln the twelve rupees
of this currentyear tho.usand

(21) (22) (23) (24) (25)
CHE GAON SARKAR AMALAS VAGERE PECH

of villages sarkar's' aufhorztyjurisdiction impediment
etcetera.g2 REJOINDER OF INDIA (II59)

(26) (27) (28) (29) (30)
NAHIN ASSE NEMUN DIAVE TYAT FIRANGEE YANI
without inthal' be assigned .there thePorlug.uese
rnanner (or allotted)

(31) (32) (33) (34)
IMARAT KARWN NAYE YA PRAMANE KARAR

building are nof to make accordingly agreement

(35) (36) (37)
KELA ASSE GAON NEMUN DILE JATIL
has been made villages assignment (or allotment) will be made.

173. It wiUbe observed from the above that the word "friendship"
was used twice, and that itwas in consideration of present as well as

future fnendship that the assignment was intended to be made ; the
assurances of the Portuguese envoy, Narayan Vithal Dhume, were
relied upon; it was specifically stated that there was to be no im-
pediment to the authority, jurisdiction, etc. of the Sarkar and that
the grant was to be made in a rnanner consistent with the authority
and jurisdiction of the Maratha Government; it was expressly ,
stated that the Portuguese were not to erect any building; and the
grant was intended to be of Rs. 12,000 from the current year from
Maratha villages which were tobe "assigned" or "allotted" (NEMUN
DILE JATIL).

174. In paragraph 79 of the Reply, the Portuguese Government
says that it is entitled to "infer" that the concession covered the
villages themselves and not only the revenue of the villages because
the Maratha text of the 17th December, 1779, speaks of "villages
yielding revenue of Rs. rz,ooo ...would be assigned". The Portu-

guese Government assumes that since the word "villagesJJ is found
in the Maratha document it must necessarily mean the territory of
the villages in full sovereignty. The Portuguese Government again
proceeds on the baseless assumption that it is entitled to "infer"
cession of territory in sovereignty. The Portuguese Government also
betrays ignorance of the meaning of the term "assignment of
villages" and of the significance of the Maratha words "NEMUN
DENE"-to assign or to allot. The Portuguese Government pretends
ignorance of the fact that the words "assignment of villagesJJmean
no more than the "assignment of the revenue of the villages".

The Portuguese Government suggested in paragraph 87 that it
had carried out a serious "study" of the nature of the grant known
as saranjam or jagir. In Annex No. Iof their Reply, as has been
seen, they cited several decisions of Indian courts and of the
Judicial Cornmittee of thePrivy Council. Itis inthesevery decisions
that the meaning of the expression "assignment of villages" is to
he found. Any number of grants of çaranjam and jagir could be cited and judicial decisions quoted to show that "assignment of
villages" meant simpIy "assignment of the revenue of the villages",

and did not even raise the presumption that it included a grant of
the property in those villages. The word "assignment" was used in
relation to revenue grants, corresponding to the Maratha words
"NEMUN DENE", and this is the term employed in the Marathi text
of17th December, 1779, which text we note is being relied upon by
the Portuguese Government

175. The meaning of the words "assignment of villages" is also
to be seen from the Portuguese text in the Portuguese language of
the 4th May, 1779, in the following words:

"Pandit Pradan has agreed to make a contributioninDaman of
twelve thousandrufieesstarting from this year throughhis Daman
jurisdiction."

Thus, the Portuguese text speaks of contribution of Rs. 12,000
making it absolutely clear that the grant was of a fiscal nature and
it makes this even more clear by stressing that the contribution
was to be 'from the junsdiction of Pandit Pradan. The clearest
proof is,to be found here that the villages from which revenue was
to be coliected were to remain in the "jurisdiction" of the Rlaratha

Government. The Portuguese Government, as has been seen above,
has omitted to mention these words. In paragraph 82 it contented
itself with the quotation "by virtue of which he shall specifically
give to the State a Sanad or a confirmatory order of the villages-".
The Portuguese Government assumes that under Article 17 of that
text the Marathas were to cede the territory of the villages and were
to issue asanad to that effect. This argument, however, cannot help
the Portuguese Government in any way. A sanad never governed
cession of territory and transferof sovereignty. It was a document
issued by a sovereign to a subject, vassal or feudatory. The very

word "sanad" implies a non-territorial disposition. The issuance of
a sanad defined the grant as a "sanadi grant". (See paragraph 113
above, and the decision in Krishntzrao Gulzeshv.Rangruo.)The words
of Article 17 in the Portuguese text of 4th May, 1779, bring out
clearly the nature of the grant and throw light on the significance
of the words "assignrnent of villages" in the Maratha document of
the 17th December, 1779. A contribution or subsidy of an annual
sum of Rs. 12,000 was to be made to the Portuguese and to this
end the Marathas were to issue a sanad assigning the revenue of

certain villages. It is obvious that the revenue of the villages could
not be assigned without the specification of villages. It is also clear
from the above that the assignment was to be done by a sanad and
it was the sanad which was to confirm the assignment and form the

l Dandekar'"Law ofLand Tenures"throwsa great deal of lonthismatter.
Several extracfromthisbook aregiven at Indian Annex F.40..
8 REJOINDER OF INDIA (II59)
94
foiindation of the grant. From these facts certain points clearly
emerge: (1)the grant envisaged in the Maratha document of 17th
December, 1779 a,nd the Portuguese document of 4th May, 1779,
was the assignment of revenue of certain villages;(2)the grant was
to be made by Sanad.

176. The Government of India submits that the Portuguese
document of the 4th May, 1779, is relevant for the purpose of
gathering the intentions of the Marathas and of the understanding
at that time of the Portuguese Government of the nature of the
grant which they wished to receive frorn the Maratha Government.
It shows that the Portuguese Government was well aware of the

fact that the grant could only be an annual rnoney grant and that
no jurisdiction was to pass from the Marathas to the Portuguese.
The Portuguese text in the Portuguese language andthe Portuguese
text in theMaratha Ianguage of the 4th May, 1779, are also relevant
because they precededthe Maratha document of the 17th December,
1779.The Maratha Government,having taken account of these docu-
ments, incorporated into the document of the 17th December, 1779
express reservations. The Portuguese text did not contain words
signifying the prohibition against erecting buildings in Maratha
villages. The hlaratha document of the 17th December, 1779 made
this absolutely clear. The Maratha document also made the condi-
tion of friendship absolutely clear; and it expressly stated that there
was to be no impediment of any kind to the "authority, jurisdiction

etcetera" of the Maratha Government in the villages the revenue
of which was to be assigned.
177. In paragraph 83, the Portuguese Government alleged that
the reference to the revenue in the various texts of the alleged

treaty did not mean anything but that "a fiscal standardJJ had been
adopted to determine the extent of the territorial cession. Here
again the Portuguese argument stands completely exposed. This
again is an instance of apriorrieasoning. The Government of India
is entitled to ask, "Where does the Portuguese Government find
words in the documents relating to the grant denoting cession of
territory in sovereignty?"

178. In the same paragraph 83 the Portuguese Government has
referred to the Treaty of 1740. It has said that in that Treaty an
exchange was made of Portuguese villages against Maratha villages
in full sovereignty onthebasi sfthe fiscavalwe of the villagTehs.
Portuguese Government has mixed up two questions: (1)the grant
of revenue itself an(2) a territorial grant made on the basis of the
revenue yield of thz territory. The Portuguese Government fias
stated that in India of that time it was usuaI for territorial grants,
to be measured in terms of the revenue yield of the territory. This
may have been so, but a grant of the revenue is totally different
from a territorial grant implying cession of territory in sovereignty REJOINDER OF IKDIA (II59)
95
using a fiscal standard.The instance cited by Portugal, narnely, the
territorial dispositionnder the Treaty of 1740, is most interesting.
That Treaty Provided/or agents of bofhparties settlifthe evaluation
oj the villages and demarcating the ter~itory.Another i~eatywus signed
sztbseqzcentlyand it wasin that treaty'thatthe villages were listed one
by one. It is inconceivable that a territorial cession in sovereignty
could have taken place under the alleged Treaty of 1779 without

mention of any territory, leaving the selection ofrritory to be done
exclusively by the Marathas andthe cession to be made by a Sanad.
179. The Portuguese Government in proof of its assertion that
there was no difference between a grant of the revenue and agrant
ceding temtory made on the basis of the revenue yield of the terri-
tory, proceeds to cite the proposa1 of the dissident Maratha chief,
Raghoba, with whom the Portuguese had held parleys. The Portu-
guese Government says that Raghoba had used the words "villages

of the same revenue", and that this showed that a purely fiscal
standard was adopted to determine the extent of a territorial cession
with the transfer of full sovereignty. But the Portuguese Govern-
ment seem to forget that in paragraph 51 of the Portuguese Reply.
they had given the words in which Raghoba proposed to cede his
irnaginary territories: "cession for ever to the Portzjgzjesenation, the
rightand the domination overall theterritorieswhich have been taken
over from them by the Marathas on this coast of the North". The
Government of India is entitled to point out that no such language
is found in any of the texts of the alleged treaty,or in any of the
documents of the Marathas concerning their grant of 1783 and 1785.

180. In the same paragraph 83, the Portuguese Government
quoted the Marquis of Alorna, a Viceroy of Portugal, in support of
the proposition that in those days there was no territorial sover-
eignty except in function of the collection of revenue. The Govern-
ment of India do not know how weu-acquainted the Marquis of
Alorna was with the Public Law of India. The Marquis of Alorna
would have been correct in expressing an opinion that rulers in
India-Moghul, Maratha and British-were interested in coIIecting
revenue and as sovereigns of their territories had the right to collect
revenue. But he would have been completely wrong if he had ex-
pressed the opinion that saranjam or jagir grants were not grants
of revenue only but cession of territory in sovereignty. If such
meaning were to be given to grants of revenue made by the Mara-
thas and the Moghuls, it would reduce to nonsense the study ofmany
learned British adrninistrators who had devoted their lives to the
study of the Indian people and their systems, and would go against

the facts of history, the jurisprudence of Indian courts and the
decisions of the Judicial Cornmittee of the Privy Council.
181. The Government of India would also like to ask the Portu-
guese Government if the villages which were granted to Dhume,.g6 REJOINDER OF INDIA (II 59)
the Portuguese envoy, were also in cession of territory with sover-
eignty, "using a fiscal standard".

182. The Government of India has put together a studyin Annex
F. No. 41 which shows quite clearly that the Maratha Government
of that time knew weUenough how to cede or acquire temtory by
the use of clear and unambipous words. It is not, as is perhaps
alleged by the Portuguese Government, that in India at that time,
cession of territory in sovereignty was made loosely or that the
concept of cession of sovereignty was not understood. The Maratha
Government fully understood the difference between a saranjam or
jagir grant and a cession of territory in sovereignty and had appro-
priate expressions for these different kinds of transactions.

183. In paragraph 80 of the Reply, the Portuguese Government
have assumed that the words "the authority of Sarkar be unimped-
ed" suggest that there waç a question of granting to the Portuguese
certain Maratha villages in full sovereignty and it was necessary for
that purpose to ensure that such villages should be chosen for cession
where the full sovereignty of the Sarkar had been exercised up to

that time without any hindrance. This is indeed a curious inter-
pretation given to the express words of the Maratha Government
not only in the document of 17th December, 1779 ,ut in an earlier
document given at Indian Annex C, No. 6 and in later sanads and
other documents. In support of their interpretation, the Portuguese
Government draw the assistance of Wagh's mistranslation of the
6th January, 1780. In paragraph 81, they quote Wagh's mistrans-
lation of Article17 and they describe the document as one "whose
value as an interpretative element of the said original cannot be
denied". In paragraph 74 the Portuguese Government has stated:

"The Portuguese translation of the Maratha text, the value of
which the Counter-Mernorialattempts to diminish without reason
sibleperson (Ananta Camotim Vaga)whoafiîxedhis signaturethere-spon-
to inorder to authenticate it. It is obvious that its contents cannot
prevailagainst the Maratha original of which itis simplya trans-
lation; butbecause it is an authorized translation, it deserves to
be taken into consideration as a precious elementinterpretativof
such original.
The Maratha translation of the Portuguese text,on the contrary,
. is the work of an anonymous translator; itwas made after the
concIusion of the treaty under unknown conditions and for an
unknown purpose. Therefore,itisnot a translation which is author-
ized."

It would thus appear that while the Portuguese Government still
attaches value to Wagh's translation, it descnbes the Portuguese
text in the Portuguese language of the 4th May, 1779 as ofsecond-
ary dinterest, and refuses to recognize the existence as a Portuguese RESOINDER OF INDIA (II 59) 97

document the Marathi version of the Portuguese text of 4th May,
1779, which the Government of India described in the Counter-
Memorial as Dhume's translation and which is now found to be a
document emanating from the Portuguese Government itself.

184. As has been shown in paragraph 87 above, the difference
in the Maratha text of the 17th December, 1779 ,nd Wagh's trans-
lation of this text is particularly obviouç in regard to the words in
Article 17-"where the authority of the Sarkar is unimpeded" and
"without having in them dominion, nor any other hindrance on the
part of the Sarkar". Wagh, in Ais translatiort, has set out to give an
opPosite interpretation of the Maratha text.1.n the Maratha lext the
authority and jurisdiction, etc, isreserved by the Sarkar. In Wagh's

translationthe dominion in the villagesis reserveto 6hePortugzteseand
taken away from the Marathas. The Government of India may ask
why should a responsible officia1translater whose translations, ac-
cording to the Portuguese Government, are worthy of faith, have
gone to the trouble of mistranslating the words "where the authority
of thesarkar is unimpeded" as,"without (the sarkar) having inthem
dominion nor any other hindrance on the part of the sarkar ...",

and invert the meaning, uniess the meaning which 7aiasinverted was
unfavourabLe to the Portaguese Government?
185. While it is clear that when the two texts cannot be reco1,-
ciled, it is the Maratha original which must prevail over the transla-
tion (and the Portuguese Government admits this), Wagh's deli-

berate mistranslation itself confirms that the words in the original
Maratha text-"where the authority of the Sarkar is unimpededM-
refer to a reservation on the part of the Maratha Governrnent of its
authority, jurisdiction and dominion.
186. In paragraph 85 the Portuguese Government stated that

other articles of the alleged treaty of 1779 lend support to the
Portuguese contention that Article 17 envisaged cession of territory
in sovereignty, because "otherwise these provisions would be
senseleçs and without practical importance". In this connection
the Government of India would like to make three observations:
(1) the Portuguese Government assume the existence of a valid and
binding treaty between the Marathas and the Portuguese; (2) the

Portuguese Government assume that' the intention of the ma rat ha.^
in the alleged treaty was to cede temtory in sovereignty to the
Portuguese; and (3) the Portuguese Government seem to contend

l The Government oiIndia has already compared the Maratha text.of the 17th
December, 1779, and Wagh's translatiothereof and demonstratedthat Wagh,
text of 4th May, 1779, with the exception of Artide 17, the meaning of which hee
inverted in a deliberarnanner. The Governmentof India pointed out thtell-
tale grammaticalerror in the Portuguelanguage of Wagh which plainly gives
his intentioaway:and the Government of India also showed how the Portuguese
Government had covered up this grammatical incongruin its French rendering
ofWagh's text at Annex Iof the Portuguese Memorial. See paragrap87 to93.98 REJOINDER OF INDIA (11 59)
that the principal and central purpose of the alleged treaty was the
grant to the Portuguese Government. The factç as stated by the
Government of India in their Counter Memorial show quite the
contrary. The principal intention of the Portuguese and of the

Blarathas in parleying with each other was to end disputes which
had arisen as a result of the capture of the Portuguese fleet by the
Marathas. The alleged treaty of 1779 was intended to be a treaty of
friendship and commerce. It was to establiçh friendly relations and
an alliance between the Portuguese and the Marathas and to
provide for freedom of commerce on land and sea between their
respective possessions. The principal purpose of the treaty was
not to be found in the provisions of Article 17.
187. If the grant of the saranjam or jagir to the Portuguese had
been the central purpose of the treaty it would have been set out
in the foremost articles and would have been alluded to in other

articles. However, the grant is envisaged in the 17th article of a
document consisting of eighteen articles.It is thereforefutile to sug-
gest that the previous provisions of the treaty should govern what
was set out at the tail-end of the treaty, particularly when none of
the other provisions allude to it. The Government of India cannot
admit that the first sixteen articles of the alleged treaty throw any
light on the true interpretation of Article 17. However, if the
articles which have been quoted by the Portuguese Government are
examined one by one, it will be clear that they cannot bear the
interpretation which the Portuguese Government would wish to
set upon them.

Article 5
188. At paragraph 85 (a)the Portuguese Government states that
the provisions of Article 5-"neither party will revive disputes
existing prior to this treaty" referred to disputes which had pre-
viously arisen between the parties concerning sovereignty over the

territories of the old "Province of the NorthJJ. The Portuguese
Government state :
"itwould be absurdto assume that ai thehistorical moment which
was most propitious for the restoration of that sovereignty the
Portuguese State should have renouncedit in exchange for a cession
of revenuewhich the Maratha State could withdraw at will".

189. The Government of India has already set out in Section 1
above its answer to the Portuguese argument that the histor-
ical antecedents of the alleged treaty of 1779 show that a part of
the old "Province of the North" was intended to be restored to the
Portuguese Government. The Government of India demonstrated
there that on no occasion did the Portuguese Government put
forward a demand for the restoration of its old "Province of the
NorthJJ to the hlarathas, nor did Dhume, the Portuguese Envoy,
ever bring to the notice of the Maratha Government the territorial REJOINDER OF INDIA (II59) 99
ambitions of the Portuguese. It has been stated in those paragraphs
that it is impossible for the Portuguese Government to show any
document in proof of any such proposa1 having been made to the
Maratha Government. The Government of India has stated in

those paragraphs that there was no dispute between the parties
concerning territorial dispositions.Al1out-standing territorial mat-
ters had been settled in 1740 Under the treaty of 1760 Portugal
had expressly given up al1 her territorialclaims against the hlara-
thas. The Government of India have already cited an article of the
treaty of 1760 :
"whereas by the present treaty the friendship between the most
happy and the Majestic State is renewed and ratified, both the
powers undertake reciprocally to forget completely any reasons
for discord, hindrances or previodaims and the capitulations clash-
ing with the agreement of this treaty shall not have any effect".

Thus Portugal gave up by thetreaty of 1760 al1her clairns. There
was therefore no territorial dispute outstanding in 1779.

Article 6
190. The Portuguese Government have next cited Article 6:

"After carrying on negotiations through the vakil both parties
should act in strictaccordance with it." From these words the
Portuguese Government concluded that the grant could not have
been revoked unilaterally by the Marathas without reference to the
Portuguese Envoy whom Article 6 envisaged as the rnediator of
the parties. The Government of India agrees that the presence of
the Portuguese envoy at the Maratha Court was the basis and
guarantee of friendly relations between the Marathas .and the
Portuguese. The Government of India would like to point out,
however, that the Portuguese Government have evidently over-
looked the fact that the Portuguese withdrew their Envoy from the
Poona Court, thus bringing about a total breakdown of friendly
relations and giving the Ilarathas justification for cancelling the
grant. They also forget that when the Marathas revoked the grant

of saranjam they expressly stated in the document of revocation:
"The Vakil from the Firangee of Goa was always accredited to
the Sarkar at Poona and the services of the Sarkar were performed
by the Firangee ofGoa. For this the Mahal of Nagar Aveli, Taluka
Bassein, has been granted by the SarkainSaranjam to the Firangee
ofGoa. Oflate noservicesto theSarkar arerendered by the Firangee.
And the VakiEdoes not reside adPoona.Therefore the Mahalshould be
resumed." (Indian Annex C. No. 31, 1,p.293.)
Thus it will be seen that the Portuguese Envoy having been with-
drawn from the Poona Court. friendly relations having ceased

between the Marathas and the Portuguese, the Portuguese having
failed to perform service to the Marathas, the Portuguese having
broken pledges of friendship with the Marathas-the Marathas1O0 REJOINDER OF INDIA (II 59)

revoked the temporary and conditional gant made by them to
the Portuguese in 1783 and 1785 l.

191. In the same paragraph the Portuguese Government cite

Article 13: "Should either of the parties become weaker the other
will not start a quarrel on some pretext or other, but will act in
friendship according to the agreement." The Portuguese Govern-
ment state that the effect of this provision was that the Maratha
Government could not revoke the concession granted to the Portu-
guese State "on the pretext that the friendship of that State was no
longer of interest to it". The Government of India would Like to ask,

did the Portuguese Government act in friendship with the Marathas?
Did they continue to maintain friendly relations with the Marathas
or did they turn on the Marathas during the time when the Mara-
thas were in difficulties and their power was on the decline? It is
a historical fact that after 1802 Maratha power began to decline
and they were hemmed in from al1sides, particularly by the British.
Did the Portuguese Government go to the assistence of the Mara-

thas? Or did the Portuguese Government take that occasion to
usurp territory which did not belong to them and had never been
ceded to them in sovereignty? The Government of India will
content itself with stating that it is not for the Portuguese Govern-
ment to complain of fnendship with the Portuguese no longer
being of interest to the Marathas, It was the Portuguese who lost
interest in the friendship of the Marathas.

Articles8,g, II',12 and 14

192. The Portuguese Government finally states (in the same
paragraph 85) that Articles 8, 9, II, 12 and 14 brought about an
alliance between the Marathas and Portuguese. The Portuguese
Govemment states that "it would be absurd to assume that the

Portuguese State would have gone so far in its undertakings in
consideration of a small revenue which was freely revocable". The
untenable nature of the Portuguese argument itself is clearly
revealed by the fact that they have referred to articles which are
of a reciprocal nature and which, if a treaty could be said to have
existed, would have bound both the parties with equal force. The

l Dhume died at Poona on the 12th May 1790 and Vithal Rao Gorki was appointed
to the same post. See P. Pissurlen"Agentsof Portuguese Diplonzacy", cited in
the Portuguese Replypage 185. Gorki died in Poona on the zgrd July 1808 when
he was 78 years old. Ban Order-in-Councdated the 3rd July of the same year,
the son of thebove mentioned Vithal Rao,by name, Lakshmi Narain, was ap-
pointed to the post of Envoy the Portuguese Government inthe Court of the
Peshwas. Lakshmi Narainheld the post of Envoy tif1 the middle of December 1811
and returnedto Goa in fuIfiIment of the Royal Order of the 2nd June 1810by
ing the permanent residence of such an Envoy". See P. Pissurop.cit.pagesions requir-
350-352. REJOINDER OF INDIA (II 59) IO1
undertakings were reciprocal and mutual. The Portuguese seem to

contend that there should have been a consideration, over and above
the condition of reciprocity, in order to obtain agreement to a
treaty of fnendship, commerce and alliance with the Marathas and
that this consideration should have consisted of a cession of terri-
tory in sovereignty and not merely a yearly subsidy or grant of
revenue. The Government of India finds it quite difficult to reply
to an argument so devoid of substance.
193. In paragraph 86 the Portuguese Government attacks what
it calls the second Indian argument, namely, that the grant isexpress-

ly described as jagir in one of the versions of the alleged treaty and
that this expression means the
"temporary assignment by a sovereigngrantor of thpublic revenue
from villages or lands, a grant neither transferable nor hereditary,
enjoyed at the pleasure of the sovereignand terminable at any time".
(SeePortuguese Reply, paragraph 78 (z).)
The Portuguese Governrnent repeats in this paragraph that the

document which describes the grant as jagir has no legal value for
the Portuguese Govonment :
"In accordancewith rvhat has already been stated in paragraphs
71, 74 and 75 this is a translation establiby the Marathas after
the conclusion of the treaty of which we have no knobvledgeeither
when, nor how, by whom nor for what purpose it was made. It is
inadmissible that the Portuguese State should be bound by such a
document."
The Government of India has already dealt fully with the pre-
tended ignorance of the Portuguese Government and it will not

repeat its arguments. However, the Government of India wish to
emphasise that the Portugziese Government are bound by thid socu-
ment. The definition oothe grant as jagirin thisdocument estopsthem
from denying that it was such a grant. The reason isthat it was this
document which was, according to the admission of the Portuguese
Government, officially sent to the Maratha Government as the
basis of the proposed treaty. It is the officia1text of the Portuguese
Government and bears the signatures of two successive Governors
General, Camara and De Souza. Moreover, the Portuguese Govern-
ment have admitted that this was the text which was signed and
ratifiedby the Portuguese Government. (See paragraph 65 of the
Portuguese RepIy.)

194. The Government of India would draw attention in this
connection to paragraph 64 of the Portuguese Reply which reads:
"This was exactly what happened in connection with the treaty
of Punem in 1779-this and nothing elçe: Viceroy Camara for-
warded to the Peshwa on May 4th 1779 a text authenticated by kis
signatur which meant that, as ofthat time, he undertook in the
name of the Portuguese State, to fulfil the provisions of that docu-
ment.IO2 REJOINDER OF INDIA (11 59)
The Peshwa tookcognizance ofthattext...thus consideringhim-
self as of this time bound vis-a-visthe Portuguese State to comply
with the provisionsof that document."

xgj. The next part of the Portuguese argument in paragraph 86
(perhaps anticipating the discovery of the document of the 4th May,
1779, at a subsequent stage of the litigation!) was that a casual

occurence of the word jagir in Article 17 of one of the versions of the
alleged treaty could not give definition to the grant. The Portuguese
Government states that the word jagir or saranjam did not neces-
sarily mean the temporary grant of revenue on a precarious and
revocable basis and that the word could not by itself be sufficient
legally to qualifythe grant. Ashas been submitted in paragraph 161
above, the Portuguese Government are proceeding on the assump-
tion that cession of territory in full sovereignty must be presumed
unless the contrary could be proved by reference to express reser-
vations. It is from that point of view that they argue that the word
jagir does notqualify cession of territory in sovereignty. The Govern-
ment of India submits that the view put forward by it is not that
the word jagir qualifiesthe alleged grant of sovereignty-it de-

scribes and indicates the nature of the grant itself.
196. The Government of India would like to repeat that the
word jagir in Article 17 in the Marathi language of the Portuguese
document of the 4th May 1779 unmistakably defines the nature of
the grant alleged to have been made by the Marathas to the Portu-

guese under the alleged treaty.
197. Furthermore, the Government of lndia would respectfully
draw the attention of the Court to the fact that the word jagir does

not occur accidentally in a single document; the whole set of cir-
cumstances show clearly that what the Marathas intended to grant
to the Portuguese waç nothing but a jagir or saranjam and that
what the alarathas actually granted to the Portuguese in 1783 and
1785 was nothing but a jagir or saranjam. The conclusion that a11
that the Maratha Government granted to the Portuguese in 1783
nad 1785 was a share of the public revenue of villages situated in
Maratha territory and within Maratha sovereignty, could be arrived
at severally and jointly from various facts which are consistent with
each other and lend support to each other. These facts may briefly
be listed hereunder :

r. The Portuguese had no territorial claims inthe North. They
expressly gave up al1 their claims against the Marathas under the
Treaty of 1760.
z. The Marathas had no intention of ceding any territory to the
Portuguese.

3. The Portuguese envoy at the Maratha Court, Dhume, never
referred to any territorial claims or ambitions of the Portuguese. REJOINDER OF INDIA (II 59)
Io3
4. The Portuguese envoy wrote to his Government that he had
asked for a grant of revenue rights.

5. No words are found in any of the versions of the aileged treaty
to signify session of territory in sovereignty. Under the different
texts of the alleged treaty:
revenue of 12,000 in villages within the jurisdiction of the
(i)
Sarkar was to be assigned-"contribution of Rs. 12,000
starting frorn the current year" in the Portuguese text of
4th May 1779-"Jagir of Rs. 12,000" in the Marathi
version of the Portuguese text of 4th May 1779.
(ii) The Marathas expressly reserved their jurisdiction in their
villages.
(iii) The Portuguese were not to erect buildings in Maratha
villages.

6. No territory was mentioned in any of the textsof the alieged
treaty.
7. The grant was by sanad :it was a sanadi grant.

8. Sanads were issued in identicai terms in respect of the grant
to the Portuguese and to the Portuguese envoy.

g. The words used in the Sanads, and the conditions attached to
to thegrant, andthe restrictions mentioned therein, clearly stamped
it as a grant of a share of the revenue only.
IO. Rights of hereditary officers were excluded from the revenue
grant to the Portuguese and to the Portuguese envoy.

II. Zakat-both Ramnagar Zakat and Nagar Aveli Zakat-was
excIuded.
12. For $hree years a cash allowance was paid to the Portuguese
directly from the Maratha treasury.
13. Before the Saranjam grant was made the Marathas required
a tribute called the Nazarana to be paid which was paid by the

Portuguese.
14. The Portuguese undertook obligations of a saranjamdar-
r. to perform service to the Marathas.

2. to return excess of revenue over Rs. 12,000.
3. not to erect any buildings.
15. A further assignment waç made in 1785, because Rs. 12,000
revenue could not be realized from the 1783 assignment.

16. Ramnagar Zakat was continued to be collected by the Mara-
thas.
17. The grant was consistently treated as a conditional and politi-
cal gant, in Maratha revenue papers. The assigned revenue was
entered on the debit side and shown as exfienditureon foreign affairs
relating to Portuguese of Goa.

18. The grant was resumed on several occasions and was re-
ajsigned.
19. Maratha guards were posted in Dadra and Nagar Aveli.104 REJOINDER OF INDIA (II59)

20. Maratha taxes were collected in Dadra and Nagar Aveli.
21. Cultivators and landowners of Dadra and Nagar Aveli corn-
plainedtotheir Maratha Rulerofthe exactionsofthe saranjam holder.
22. In 1817 the Maratha Government revoked the grant of
saranjam to the Portuguese.

198. The Portuguese Government'itself admits in paragraphs I,
2 and 3 of Annex No. I of the Portuguese Reply that the reference
to jagir in the translation of the Portuguese text in the Marathi
language of 4th May, 1779 is not casual and does not stand by itself.
The Portuguese Government statesin paragraph 3 of that Annex:
"Apart from this transIation the word jagir as also saranjam
appears only in documents of interna1servicof the Marathi Court,
memoranda, sanads, letters sent to siibordinate authorities and
accounts of fiscal administration of the Peshwa."

199. In the next sub-section the Government of India urill pro-
ceed to examine in some detail the Maratha documents relating to
the grant. Before proceeding tothe next sub-section the Government
of India will observe that the Portuguese Government has not
ventured even to refer to, much less to explain, inany manner the
restriction contained in Article 17 of the Maratha document of
17th December, 1779, that no imarat was to be raised by the
Portuguese in the Maratha villages. The Government of India will

take the opportunity of referring to this restriction in sorne detail
in the next sub-section. REJOINDER OF INDIA (II 59)

The Maratha Granfs of1783 and 1785

zoo. In paragraphs 84and the following of the Counter-Memorial
the Government ofIndia described the manner in which the Mara-

tha Government made certain Saranjam or Jagir grants to the
Portuguese in 1783 and 1785. The Government of India referred
to Maratha Sanads and orders relating to the grant and showed
thatin response to the assurances of friendship, which they received
from the Portuguese Envoy, Narayan Vithal Dhume, they resolved
in1776 to make a Saranjam or Jagir grant to the Portuguese and
to Narayan Vithal Dhume and they implemented this resolution in
1783 and 1785. In 1783. the Maratha Government assigned both
to the Portuguese and to Narayan Vithal Dhume certain villages
from which the named revenue, narnely Rs. Ia,ooo and Rs. 3,000
was to be collected. It prohibited the grantees frorn raising any
Imarat or building in the assigned villages; and it excluded frorn
the grant certain hereltary dues known as Watan and it reserved
to itself the collection of theMaratha tax known as Ramnagar

Zakat.
201. At paragraphs 89 and the following of the Reply the Portu-
guese Government has disputed the statements of fact made and
conclusions reached by the Government of India. In its attempt
to refute 'theIndian facts and arguments the Portuguese Govern-
ment has proceeded on several assumptions and premises. These
assumptions and premises of the Portuguese Government could be
summarized as follows:-

(1) There was a vdid treaty concluded between the Mara-
thas and the Portuguese in 1779.
(2) This treaty provided for cession of territory in full
sovereignty.
(3) The Maratha version of the 4th May 1779 which'des-

cribeç the proposed grant frorn the Marathasto the Portuguese
as Jagir does not exist as a Portuguese document, cannot bind
the Portuguese Government, and is of no value in determining
the nature ofthe grant made by the Marathas.
(4) The study and conclusions of the Government of India
relating to the nature of the grant known as Saranjarn or Jagir
are erroneous and irrelevant.

In the preceding paragraphs of this Rejoinder, the Government I
of Indiahas shown all the above assumptions and premises of the 1
Portuguese Government to be false and without foundation. TheI06 REJOINDER OF IKDIA (II 59)

Government of India has shown in Section II above that no treaty
was concluded between the Marathas and Portuguese in 1779
and that none of the documents which are alleged to constitute
a treaty contains a provision for cession of territory. The Govern-
ment of India has also shown in paragraph 96 above that the

document which describes the proposed grant as ]agir is an officia1
text of the Portuguese Government issued under the signature of
the Portuguese Viceroy, Camara. At paragraphs 97 to rgg above the
Government of India has demonstrated in detail the nature and
legal incidents of the Maratha grant known as Saranjam and jagir
and shown itto be a grant of the share of the public revenues revo-
cable at the pleasure of the Grantor. The Government of India will
proceed to examine the arguments advanced by the Portuguese
Government on the basis of the above stated assumptions and
premises and it wiil show that the Portuguese superstructure is as
faulty as the foundation upon which it is built.

zoz. The Portuguese line of argument contained in the chapter of
the Replyentitled "Execution of the Treaty of 1779 and the Supple-
mentary Accords of 1783 and 1785", and which is based upon the
above stated assumptions and premises, may be summarized as
follows :-

(1) The nature of the grant actually made by the Marathas
in 1783 and 1785 is not to be gathered frorn the Sanads and
Orders of the Marathas.
(2) Interna1 documents of the Portuguese Government are
relevant for the purpose of deciding whether or not the Mara-
thas made a cession of territory in full sovereignty t~ the
Portuguese.

(3) Evidence of a cession of territory by the Marathas to
the Portuguese is to be found from certain documents in the
Portuguese language which are alleged to be "bilateral".

The Sanads and Orders ofthe Marathas

203, At paragraph go of the Reply the Portuguese Government
states :--
"In this connection, the Portuguese Government refutesab initio
the argument of the Governnient of fndia (Counter-Mernorial
paragraph 84) according to which the legal nature of the concession
made to the Portuguese could only be determined by the "sanads"
emanating in this connection from the Maratha Chancellory.
This theory is basedupon an erroneous assurnption that no true
8,eaty was concluded in 1779 and that, thercfore, the Maratha
sanads" were the only legal grounds upon which the concession
was based.
The truth, however, is quite different. The existenceofa luso-
maratha treaty concluded in 1779 cannot be drawn into doubt as REJOINDER OF INDIA (II 59)
IO7
bas been shown (supra,paragraphs 63 to 69); nor can it be drawn
into doubt that is was by Article 17 of,that Treaty and not by a
unilateral subsequent resolutionofwhatever type it might have been
that the Marathasgranted a territorialconcession to the Portuguese."

At paragraph 92 of the Reply the Portuguese Government des-
cribed the Sanads as "documenls representing onlythe unilateral
wiZ1 of one ofthe signatori toehe Treaty of 1779" 1. It is clear from
these paragraphs of the Reply that this assertion of the Portuguese

Government depends entirely on the assumption thatthere was in
1779 a treaty concluded between the Marathas and the Portuguese.
Accordingly, in view of the non-existence of the alieged treaty of
1779, the above assertions of the Portuguese Government fail
altogether.
204. At paragraph 84 of the Counter-Mernorial the Government
of India stated :-

"The nature of the interest actually granted to the Portuguese
in the Maratha vilIageç is clearly brought out in the manner in
which thegrant ofrevenues wasmade. Thesegrants weremade under
sanads. A sanad expresses the notion of a royal grant, diplorna,
charter, patent; it signifiea document inrespect of emoluments,
titles, privileges, officesor rights to revenue, etmade under the
seal of the Sovereign. The expression descendedfrom Moghultimes,
was used by the British Government in India, and içstill used. A
sanad, by its definition, could not bring aboua grant of sovereign
rights or rights imposing a binding obligation on the grantor. It
was always revocable."

As has been çtated by the Government of India in the previous
section relating to the nature of the Maratha grants known as
Saranjam or Jagir (see paragraphs 97 et seq.) and as appears from
the administrative practice and judicial decisions cited in connec-
tion therewith, a grant made under a Sanad signifies a grant made by
a Sovereign Grantor, not as a matter of obligation, but as a rnatter of

bounty. A Sanad creates rights which may be exercised only during
the pleasure of the Sovereign.
The Government of India finds that in paragraph 91 of the
Reply the Portuguese Government does not contest the fact that
a Sanad could not bring about cession of territory or "transmit
sovereignty". What the Portuguese Government denies is that
the grants made by the Marathas to the Portuguese in 1783 and
1785 were grants made under Sanads. Thus at paragraph gr of the
Reply it states:--

"Indeed, there isnot the least interest to determine whether the
right of sovereignty can or cannot be transmitted by a 'Sanad'
nor whether a 'Sanad' in and ofitseIf is or is not freely revocable,
because it zvasnoby 'Sanad'emanuting/rom theMaratha Government

l Ernphasisofthe PortugueseGovernment.108 REJOINDER OF INDIA (II 59)

that the sovereigntyoverthe villagesadjoiningDaman was transferred
to the PortugueseStatbut by the treatyo1779 itself.l

In the submission of the Government of India the above consti-
tutes an admission by the Portuguese Government that thePortu-
pese couldnot and dzdnoi acqztiresovereigntyoverDaman and Nagar
Aveli under Sanads issued by theMaratka'Government. In short, the
Portuguese Government altogether abandons its claim that the
Sanads issued by the Maratha Government in 1783 and 1785
constituted Portugal's title to sovereignty over a part of Maratha
territory.
205. In the second place, however, the Portuguese Government
appears to suggest that the Sanads, orders and executive documents

of the hlaratha Government are irrelevant for the purpose of deter-
mining the nature of the grant made by the Marathas. This con-
tention of the Portuguese Government is obviously untenable. The
grant was made by the llaratha Government and the nature and
contents of the grant and the intention of the grantor are to be
seen from his documents and not from the documents of the grantee.
It is from this point of view that the documents of the Ilarathas
occupy a prominent place for the purpose of determining the nature
of the grant made to the Portuguese in 1783 and 1785. The dictum
that the nature ,ofthe grant is to be ascertained frorn the intention
of the grantor is sowell known and obvious that it is not necessary
for,the Government of India to elaborate it any further.

206. The Portuguese Government then proceeds to allegein para-
graph 92 of the Reply that "nothing can be inferred from these
Maratha documents which would militate against the @lenary and
per~aanen tcharacter of the concession granted to the Portuguese".
It refers in paragraph 93to Maratha documents at Indian Annex C.
Nos. 7,8, g,IO and II,and states that it cannot find in these dacu-
ments "an expressreservationl ofsovereignty in favour of the Master
of Punem or an expressresemiationl of the right of revocation".
In the submission of the Government of India the above asser-
tions of the Portuguese Government show that the Portuguese
Governrnent have entirely missed the point that itis for the Portu-
guese Governrnent to prove cession of territory in full sovereignty
from the Marathas. A title to cession of territory in full sovereignty
must be proved; it cannot be presumed. The alleged absence in

Maratha documents relating to the Saranjam grant of an "express
reservation of sovereignty in favour of the Master of Punem" could
neither bring about cession of territory nor creatk by presumption
a title to sovereignty in favour of Portugal. Accordingly, it is not
for the Government of India to show an "express reservationJJ in
respect of continuation of the sovereignty of the Marathas over

Our italics.
' Emphasis of the Portuguese Government. REJOINDER OF INDIA (II59) IOg

their terntory, butfor the Portuguese Government to find and show
express words indicating cession of territory in full sovereignty in
some treaty to which the Marathas were a party. This, in the sub-
mission of the Government of India, the Portuguese Government
has failed to do.

207. Having thus shown the line of the Portuguese argument to
be erroneous and founded on assumptions and premises which are
themselves without basis in fact, the Government of India will now
demonstrate that the very Maratha documents referred to by the
Portuguese Government leave no doubt ofany kind asto the nature of
the grant intended to be made by the Marathas in 1780 and actually
made by them in 1783 and 1785.
208. In paragraphs 93, 95, 96, 97,of the Reply the Portuguese
Government has referred to Maratha documents at Indian Annex C.
Nos. 7,8, g, ro,II, xz,14,15. Ifthese documentsare examined it will

be found that they reveal the following facts:
r. The grant made by the Marathas to the Portuguese and
to Narayan Vithal Dhume was a grant of Saranjam or Jagir.
2. The grants in question were made in implementation
of theMaratha resolution of 1776 and were in no way dependent

on the alleged treaty of 1779.
3. No distinction was made by the hlarathas between the
grant to the Portuguese and the grant to Narayan Vithal
Dhume.
4. The expression "assignment of villages", which means
assignment of the revenues of particular villages, was used
in documents relating to the grant to Narayan Vithal Dhume
as in documents relating to the grant to the Portuguese.

5. The collection of certain dues and taxes was excluded
from the grant of revenues, both in the case of the Portuguese
and Narayan Vithal Dhume.
6. Both the grantees, the Portuguese and Narayan Vithal
Dhume, were prohibited from raising irnarat or building in the
"assigned villages", where it was stated the authority and
jurisdiction of the Maratha Sarkar wouId continue without
interruption.

209. For the convenience of the Court short extracts from these
documents andthe document at Indian Annex C. No. x3, which the
Portuguese Government omitted from its consideration, are set
out below:
INDIAN ANNEXC. NO. 7

"Jagir ofRs. 15,000has been assigned togetherto the Firangee
and his Envoy Narayan Vithal Dhume: ..agreement has been
made to assign villages of Rs. 15,ooo from the current year...
Sanad granted."
9INDIAN ANNËX C. NO.8 (Part I)

"Saranjam to Firangee of Goa ...
Narayan Vithal Dhume, Firangee envoy, has conveyed assuran-
ces that the Firangee is friendly towards the Sarkar and would
continue likewise in future. Thereforea Sanad is issued according
to agreement that on behalf of the Sarkar villages adjoining Da-
man worth Rs. 3,000 where the Sarkar's authority runs unimpeded
be assigned to the above person by way of allowance. No Imarat
of any sort be raised."
"Saranjam to Firangee of Goa ...
The Firangee of Goa is in amity with the Sarkar. Therefore Sanad
is issued according to agreement, that villages adjoining Daman and
of the revenue of Rs.12,000and without restriction on the authority
of the Sarkar, and where no buiIding shall be raised, be seiected for
the Firangee."

INDIAN ANNEX C. No. 8 (Part z)
"The Firangee of Goa [haç put] iç keeping friendlyrelations with
the Sarkar. Therefore Sanad has been issued making agreement that
to the Firangee' may be assigned villages adjoining Daman worth
Rs. 12,000and without restriction on the authority of the Sarkar ;
and no imarat be raised."

INDIAN ANNEX C. NO. 9 (Part 1)

"Sanadç for villages assigned to the Firane...
Sanad to the Firangee envoy ...
I Mauza 1 Kubharia ...
1 Mauza Suklav ..."

"The Firangee of Goa iç keeping friendly relations with the Sarkar.
Therefore formerly a Sanad was issued to you after making -grec-
ment to the effect that villages adjoining Daman of the revenue
of twelve thousand rupees, in which the authority of the Sarkar 1s
unimpeded and of the above Kama1 Akar a should be assigned from
Prant Bassein and no Imarat be constructed.
But villages were not assigned. Therefore this Sanad is issued for
assigning villages...excluding Sarkar's Watans of Deshmukh,
Despande, Gaon-Kulkarni and Sar-Patil, and of Zakat ...
Therefore the remaining [Amal] Kamal Akar aof the villages
excluding Sarkar's Watans and Zakat be made Durnala to the Firan-
gee and be shown on the debit side of the accounts of the said Prant.
No Imarat be constructed in the villages."

INDIAN ANNEX C. NO. g (Part 3)
"Narayan Vithal Dhume, Firangee Vakil, has conveyed assuran-
ces that the Firangee is friendly towards the Sarkar and would
continue likewise in future. Therefore formerla Sanad was issued
" to you after making an agreement to the effect that villages in

. ! Marathi fo"village".
'Revenue yield. I~EJOIND OËF INDIA (II 59) III-

' Prant Bassein yielding revenue of three thousand and haringthe
authority of the Sarkar unimpeded therein should be assigned and
that no Imarat should beconstructed there..Therefore escluding...
Watans and Zakat the rernaining Revenue of the said villages
be given as Dumala to him and be shown on the debit side of the.
accounts of the said Prant. No Imarat be constructed. Sanad to
Visaji Keshav."
INDIAN ANNEXC.NO. IO

.."no Imarat may be permitted to be raised."

INDIAN'ANNE X.NO. II
."Memorandum in respect of villages. .. to be assigneto the
Firangee ..Sanads and letters in respect of this ...Letters to
the same effect about the two villages Kumbhariya and Suklav
. granted to the Firangee envoy Narayan Vithal Dhume ..."

INDIA AN NNEX C.NO. 12
"Sanad should be issued to Anand Rao Bhikaji that he should
assign to the Firangee villages in Taluka Bassein of the Karnal
Akar of twelve thousand rupees under the administration of Visaji
' Keshav and which are in the jurisdiction of the Sarkar and are.
free from disturbances of the English. A detailed memorandum of
villages assigned should be sent to theur.
. It should be clearly written ithe Sanad that these villages are
assigned in lieu of villages adjoining Daman formerly assigned but
which couldnot then be made Dumala."

INDXAN ANNEXC. NO: 13
"Sanad be [made] toAnand Rao Bhikaji. He should select for
Narayan Vithal Dhume villages in Taluka Bassein of the total
'' 'revenue of Rs. 3000 on the administration of Visaji Keshav and
which are under the exclusive authority of the Sarkar afree from
disturbance of the English.A detailed rnemorandum concerningthe.
villages assigned should be sent to the Huzur. TheSanad to make
it clear that these villages are being assigned in lieu of viilages.
formerly assigned and which could not be made Dumala."

INDIAN ANNEX C.NO. 14
"Now therefore from villages of Taluka Bassein in which the
Sarkar's authority is unimpeded villages on the basis of Kamal
Akar during the administration of Visaji Reshav and which are
free from the disturbances of the English and which yield Kama1
Berij [total revenueoftwelve thousand, be assigned and a detailed
. rnemorandum of the assigned villages be sent to the Huzur."

INDIAN ANNEX C. NO. 15 . .
"Saranjam to the Firangee ofGoa.

INDIA ANNNEXC. NO.18
"..the Firangee should not construct in the said Pargana any
new Imarat. If he attemps to ;onstruct. any new Imarat he should
-.'be prevented." .-. ...... . .II2 REJOlNDER OF INDIA (II59)

210. At paragraphs 99 and' 105 of the Reply the Portuguese
Government faced with the description of the grant as "Saranjam"
and "Dumala" in the Maratha documents resorts once again to
the argument that the occurrence of the words "Saranjam" and
"Dumala" in the Maratha documents relating to the grant does

not in any way derogate from the "plenary and permanent charac-
ter of the concessions". Thus at paragraph 99 the Portuguese
Government states :
"Once again, as before, the Government of India attempts here
with the word 'Saranjarn' to deduce from a word, the legal struc-
ture of an institution, But this deduction is permissibleonly when
the word in question has a single and uncontroverted sense. This
is not true in the present ca'Dhumala" may have rather varying
significanceand, in a currenr sense itfarfrom meaning, as aileged
by the Government of India, "thereversionary nature of the grant'.
Furthermore the word could never be considered as binding upon
the Portuguese because it isencountered only in documents which
have no bilateral legal value."

As will appear from the documents, and as has already been
demonstrated by the Government of India in the paragraph above,
the Maratha documents define and describe the nature of the
grant made to the Portugueçe and to Narayan Vithal Dhume. The
Government of India has already stated that ifthe Portuguese
Government contends that in these documents the words "Saran-
jam", " Jagir" or "Dumala" do not have their ordinary meaning
then it is for the Portuguese Government to set out and prove that
they'had another meaning.

2x1. The Maratha documents also show that the grant which was
intended to be made in 1780 and which was actually made in 1783
and 1785 was made on the bais of the Rlaratha resolution of 1776
and not in irnplementation of an alleged treaty. The reference in
the documents is to an agreement to make a grant for Rs. 15,000

to the Portuguese and to Narayan Vithal Dhume. Obviously, this
is a reference not to the documents of the 4th May, 1779,or the 17th
December, 1779, which are alleged by the Portuguese Government
to constitute a treaty.These documents do not mention a grant to
Narayan Vithal Dhume or a sum of Rs. 15,000. The reference is to
the Maratha memorandum, resolution or decision of the 24th
August, 1776. (Indian Annex C. No. 6.) As the Government
of India has shown the documents of the 4th May 1779 and
the 17th December 1779 never became a treaty. Furthermore,
the Maratha document of 1779 at Indian Annex C. No. 7
referred expressly to the "proposal of 1776". The document of
1776 at Indian Annex C. No. 7 is seen to bea resolution or decision

to make a grant of Rs. 12,000 to the Portuguese and a grant of
Rs.3,000 to Narayan- Vithal Dhume on the basis of assurances
given by Narayan Vithal Dhume that he and the Portuguese REJOINDER OF INDIA (II59) JI3
Government had pledged their friendship towards the Maratha
Ruler.Thus the Sanads which were issued by the Marathas in 1780
onwards were based not on an alleged treaty but on the decision

of the Maratha Sovereign in 1776 to make a grant to the Portuguese
and to Dhume as a matter of bounty and on condition of the gran-
tees pledging their friendship towardsthe Marathas.

ZIIa. The Portuguese Government has sought to show a distinc-
tion between the grant made to the Portuguese and the grant made
to Narayan Vithal Dhume. However, as will be seen from the
Maratha documents referred to above, the grant to the Portuguese
and to Narayan Vithal Dhume was made in an identical rnanner.

The Portuguese Government has sought to draw a distinction by
asserting that, one, the grant to the Portuguese Government was
based on the alleged treaty o1779 and the grant to Dhume was made
outside and independently of the alleged treaty; and two, the grant
to the Portuguese Government was of "vilIages" whereas the grant
to Dhume consisted only of the "revenue of villages".

ZII 6. The Portuguese argument clearly faiIs in so far as it is
based on the assumption that a treaty was concluded between the
Ilarathas and Portuguese in 1779 and that it was in implementa-

tiop of a treaty that a grant waç made to the Portuguese.

211c. As regards the Portuguese argument that the grant to
the Portuguese Government consisted of "villages" and the grant
- to Dhume consisted of "the revenue of the villages", the Maratha
documents referred to above show quite clearly that no such
distinction was maintained. It is clear that the Portuguese Govern-
ment has not understood the meaning and significance of the
expression "assignment of villages". As has been sho~~nin the pre-

vious section on the nature of the grant of Sararijam and Jagir, and
as appears clearly from the authorities quoted there, "assignment
of villages" signified "assignment of the revenue from villages".
The expression "assignment of villages" did not signify and was
not capable of signifying a transfer of the land of the villages
or cession of territory in sovereignty. Furthermore, it will beeen
from the Sanads under discussion that these Sanads spoke of the
"assignment of villages" to Nayrayan Vithal Dhume in the same
manner as to the Portuguese. The Portuguese statement that the
Maratha documents indicated a difierence between the grant to the
Portuguese and the grant to Narayan Vithal Dhume by speaking
of "viIlages" in respect of the grant to the Portuguese and of
"simple revenu;" in respect of the grant to Dhume has no basis in
fact as can be seen from the Maratha documents (e.g. Indian
.Annex C. No. 8 (Part 1)). REJOI,NDER OF INDIA (11 59)
II4
212. The Portuguese Government admits in paragraph 97:

"The concession granted to Narana Sinai Durno had only a
transitory and precarious character and became moot in 1790 at
the time of the death of the interested party."

The Portuguese Government thus admits that the nature of the
grant made by the Marathas to Dhume was transitory and pre-
carious. The grant made by the Marathas to Dhume was a Saran-
-]am grant 1. In the submission of the Government of India it must

follow that, since no distinction was maintained by the Maratha
Government between the grant to the Portuguese and the grant
to Narayan Vithal Dhume, the grant to the Portuguese was also
"transitory and precarious". , ~

213. The similarity of the grant made to the. Portuguese and io
Narayan Vithal Dhume is also to be seen from the fact that the
Marathas ,excluded from both the grants the collection of here-
ditary dues known as Watan and the taxknown as Zakat.

214. Finally, both the grantees were prohibited from raising any

Imarat or building in the "assigned villages". The Portuguese
Government has said absolutely nothing about the prohibition in
respect of the raising of Imarat or building. As the Governrnent of
India stated in paragraph 62 of the Counter-Memorial, and as will
have emerged from the previous section on the nature ofthe hlaratha
grant known as Saranjam or Jagir, the prohibition on the raising

of Imarat or building in the villages of which the revenue was
assigned to a grantee was customary and the existence of this very
prohibition gave definition to the grant as a revocable and ter-
minable grant. The Portuguese Government apparently finds it
extremely difficdt to give any answer on this point 2.

Interna1documents of thePortzrguese Government

215. The Portuguese Government proceeds in paragraph roo and
the following of the Reply to deduce from contemporary Portztguese
*.documentsthat "the Goa and Lisbon authoritieç never had the

slightest daubt concerning the plenary and permanent character

l In a footnote to paragraph 95 the Portuguese Government admits that a
confusion did exist between the grant to Portuguese and the grant to Narayan
Vithal Dhume. and that the Portuguese Government at one time consideredthe
two villages Kubharia and Suklavgrantedin Saranjam to Narayan Vithal Dhume
as also forming part of temtory ceded to them by the Marathas.
' Indian Annex C. No. IO,which is an entry of a Sanad of the 3rd June 1780.
or building.The document reads: "Sanad to Mukadamsrrnoftthe nine villageNOat
Imarat is to be raised in the said villages. Therefoimarat may be pevmitted
to be raised." The languageof this document indicatethat the servants of the
Maratha State were instructedto exercise their authoriand to ensure that the
Portuguese did not raise any imarat or buildingin the assigned villages. REJOINDER OF INDIA (II 59)
II5
of the concession". It is thus clear that while, on the one hand, the

-PortugueÇe Government denies the value and effect of Maratha
,.ocuments it seeks to find evidence of'cessiop of territory in full
sovereignty from the contents of unilateral Portuguese.documents.
It is hardly necessary for the Government of India to point out

again that the documents of the grantee are of no relevance for the
purpose of ascertaining whether or not the alleged treaty contains
provision for a cession of territory in fulI sovereignty. A misunder-
standing on the part of the grantee as to the nature of the grant

received by hirn cannot turn a grant of revenue into a cession of
territory in full sovereignty. The Government of India accordingly
submits that the internal documents. of the Portuguese Govern-
ment whch are relied upon by the Portuguese Government are
-entirely 'irrelevant for the purpose of determining whether ail

alleged treaty contains a provision for cession of territe in full
sovereignty l.

216. However, while the Portuguese internal documents are
absolutely irrelevant from the point of view of giving definition to
the grant made by the Marathas to the Portuguese, they themselves
,contain no indication either that the Portuguese acquired cession

of territory in full sovereignty or that the Portuguese understanding
at that tirne was that they were to acquire cession of territory in
full sovereignty. Thus a letter wntten on the 11th January, 1780,
by the Portuguese Viceroy at Goa to the Governor of Daman
inçtructing him that he should go "and personally take possession

of the said villages", which is relied upon by the Portuguese Govern-
ment at paragraph 101 of the Reply, states nothing about cession
of terntory in full sovereignty 2.

217. In paragraph 102 of the Reply the Portuguese Government
refers to a "strong protest" made by the Portuguese Viceroy to the
British Government of Bombay. The Portuguese Government
states:

"the Viceroy pointed out that Portugal had never devilated/rom
the idea O/ restoringits sovereigntyoverthe territoriesof theProvince

It will be noticed that in paragrap92 and IOO of the Reply the Portuguese
Government does not speak of cession of territorin full sovereignty.It speaks
-of"the plenary and permanent characterof the concession*'. It is not cleaif
by the use of this formuIa the Portuguese Governmehas receded from the position
adopted elsewhere in the Reply and in previouspleadings that under the alleged
treaty of 1779the Marathas made to Portugal a cession of territory in full sover-
eignty.
2 The translationof this letter which was annexed by the Portuguese Govern-
ment at Annex No. 26 to the Reply has been studiedby the Government of India
and found to be inaccurate. The Government of India has made a fresh translation
from the original Portugueselanguageinthe photocopy of the document in question
(Indian Annex F. No. 42).A comparison of the translationat Portuguese Reply
Annex No. 26'and Indian Annex F. No. 42 will show that the Portuguese Govern-
ment has rendered the word "deliver" in the Portuguese language as"cession" or
"transfer".116 REJOINDER OF INDIA (II59)
of the No~tAl, which the Marathas occupied'by force without
just cause of war; anhe added alongthe sameline that the Portu-
guese State had already obtained by negotiations from the Govern-
ment of Punem 'that there be delivered to it the Sanads for the
transferof a few villages'."

The Government of India has already referred to this letter at
paragraph 42 above and shown thatthe British Government totally
rejected the above mentioned "strong protest" of the Portuguese
Viceroy and the Queen of Portugal expressed her mortification
as the result of the Portuguese Viceroy having put fonvard an
obviously untenable claim to sovereignty over the lost territories of
Portugal. (Indian Annex F. Nos. IO and II..) However, the above
statement of the Portuguese Government and the Ietter cited by it
have the merit of showing that even at that time(in1782) the Portu-

guese Viceroy did not state that he had entered into a treaty with
the Marathas or that under a treaty he had received from them
cession of temtory in full sovereignty. He merely stated that he had
obtained by negotiations and under Sanads the transfer of a few
villages.
218. Similarly, the documents cited by the Portuguese Govern-
ment at paragraphs 103and 104 do not in any way help the Portu-
guese Government in support of its assertions. At paragraph 103
of the Reply the Portuguese Government speaks of "demarches for

the transfer ofvillagesof the revenue promised located elsewhere",
and it refers to Annex28 which contains extracts from twoletters of
the Portuguese Viceroy, one to Narayan Vithal Dhume andthe other
to the Governor of Daman. These very documents show that there
was no question of cession of territory and that the instructions of
the Portuguese Viceroy related toa fiscalgrant. Thisis clear from the
extracts printed at Annex 28 of the Portuguese reply and even
more clear from the full text of these letters found in the photo-
copy of the sarne Annex. The Portuguese Government also cites
at Annex 29 to the Reply another letter from the Portuguese Vice-
roy to the Governor of Daman. This letter makes it clear that the
discussion concerned "the annual revenue of Rs. 12,ooo". These
documents themselves are evidence of the fact that what the Portu-
guese Government was interested in and what even according to

their own understanding they were to get from the Maratha Govern-
ment was "the annual revenue of Rs. 12,ooo". In a footnote to
paragraph 103 of the Reply the Portuguese Government drew
attention to Indian Annex E. No. 7 and No. 8. However, nothing is
to be found in these documents to show either that the Portuguese
received cession of territoryin full sovereignty or that the Portu-
guese understood the intended grant to be one of territory in full
sovereignty. The documents cited in paragraph 104 and given at
Annexes 30 and 31 to the Portuguese Reply, which are extracts

Emphasisof the Portuguese Government. REJOINDER OF INDIA (II 59)
II7
from a letter from the Portuguese Agent at Daman to Narayan
Vithal Dhume and a letter from the Secretary of State, Lisbon, to
the Portuguese Viveroy, also do not help the Portuguese Govern-
ment inany way.

218 a. At paragraph 109 of the Reply the Portuguese Govern-
ment refers to certain unilateral Portuguese documents the alleged
"deeds of possession". The Portuguese Government states that the
Government of India does not deny the authenticity of this docu-
ment. Obviously, the Portuguese Government is under a mis-
understanding. If paragraph 108 of the Counter-Mernorial of the
Government of India is read it will be found that the Government
of India did not accept the authenticity of the alleged "deeds of
possession". The Government of India stated there:-
"irrespective of the authenticity or othenvise of the alleged docu-
ments, no such documents drawn up or ceremonies performed by
the Portuguese without the participation or approval of the Mara-
thas could have affectethe sovereignrights of the Marathain the
territorieof Dadra and Nagar Aveli, nor could such 'deeds of
possession', drawnup by the Portuguese add to the limited non-
sovereign, revocable interest ganted to them by the Marathas in
Dadra and Nagar Aveli",
The Government of India emphatically denies the authenticity
and value of the alleged "deeds of possession" given at Annexes 5
to 7 to the Mernorial. Annex 5 to the hlemorial is seen to be a
document in the Portuguese Ianguage drawn up by a Portuguese
Notary Public of Daman and styled by him as a "deed of posses-

sion". In this document, the Notary Public states that certain
headmen of the villages of Dadra and Nagar AveLiwere assembled
together and infonned of the orders of the Marathas and that they
were calIed upon to recognize the Queen of Portugal as their Sover-
eign. It is stated in thedocument that these assembled headmen,
who did not have any kno~vledgeof the Portuguese language, and
who could not read or write, were asked to affix their signs to the
same "deed of possession", The photocopy of Annex 5 discIoses
certain scrawls and marks at the end of the Portuguese text which
scrawls and marks are stated to be the signatures of Maratha
headmen. The Portuguese Government contends in paragraph 109
that the assernbled headrnen shouted "VivatJJ and accepted the
Queen of Portugal as their Lady. The Government of India finds it
diacult to believe in the first place that headmen of 62 villages
were al1 assembled at one place and that they were made to
acknowledge the Queen of Portugal as theirLady, and that when the
Portuguese Notary cried "Long Live the Sovereign Queen of
Portugal, Our Lady", the headmen responded by shouting "Vivat".
It is also difficult for the Government of India to believe that a

document was drawn up there and then inthe Portuguese language,
that it was explained to the ilLiterate people and that theyput their
scrawls underneath that document in acknowledgement of 'Po%- pese sovereignty over Dadra and Nagar Aveli. Annex 7 to the
Memorial is found to be an entry in a Portuguese register of
-another alleged "deed of possession". This document states that it
contains the signature of a minor Maratha officia1Sadashiv Pant.
However, the Portuguese Government have not produced the origi-
.na1document and it is difficult to Sayif indeed the alleged document
exists or if it contains the signature of the.said Xlaratha official.
218b. Quite apart from the unreliable nature of these documents

it is clear that no deeds drawn-up by the Portuguese or the shouting
of "Vivat" could have affected the sovereign rights of the Marathas
'or brought about cession of territory in the absence of an intention
on the part of the Marathas to part with sovereignty over their
territory. .. ,

AZZegedbilateral documents
219. At paragraph 106of the Reply the Portugueçe Government
states :-

"As a result of the orders given by the Government of Punem in
the documents just referred to, there actually took place on May
zgth, 1783the transfer to the Portuguese State ofthe entire Pragana
of Nagar-AveIi with the exception of six villages and of the taxes
collectedby the customs authorities of that Pragana.
The transfer took place via an exckangeof oficial docunzentsl
between the local Maratha and Portuguese authorities: on the one
hand bo ordersof servicl issued by the Subedar of Bacaim, one to
the Chief of Suarim and the other to the patels and to the people
of the Pragana, authenticated copies of which were transmitted to
the Governor of Daman forhis archivesas titles oftransfer. (Annexes
Nos. zand 3 to the Memorial) ;and on the other hand a receiptlmade
out by Commander ManuelAntonio de Faria, Plenipotentiary of the
Governor of Daman at the intention of the Maratha authorities
(Annex No. 4 to the Memorial.)
These documents have exceptional value as proof, because, ,
aintrulyebilateral legalcharacierl.tThese are documents directlye
exchangedbetween the competent authorities of the two High Con-
tracting Parties;they thereforehave the character of a supplernent-
ary accord to the Treaty of 1779 as binding upon the,two govern-
ments as the Treaty itself, and to the implementation ofwhich they
have reference."

The following points ernerge from the above statement of the
Portuguese Government :-

I. The Portuguese Government asserts that there was in
1783 an "exchange of officia1documents";
2. This alleged exchange of official documents consisted of
transmission to the Governor of Daman of "authenticated
copies" of alleged Sanads issued by the Maratha Government,

i ' ' Emphasis of the Portuguese Government. ' one to the Maratha Chief of Suarim and another to the Patels
and people of the Pragana; and
3. The ~ortuguese.~~ent of the Governor of Daman trani-
mitted a "receipt" to the Maratha authorities.

The ~~rtuguei~ GoVernmerit asierts that- these al1eged~'docu-
ments are of a "truly bilateral legal character" and that they have
the character of a "supplementary accord" to the alleged treaty
'of 1779.
220. At paragraphs 108 and 112 the Portuguese Government
.refers to what it callsLuso-Maratha accords of 1783and 1785'~and

states that these accords constitute "proof-to be added to so many
other proofs-that the enclaves of Dadra and Nagar Aveli were
,given to the Portuguese in full sovereignty".
221. The fact that there were no "bilateral documents" in 1783
and x785is clear from the very text of the documents referred to

by the Portuguese Government. The Portuguese Government states
that authenticated copies of two Sanads were transmitted to the
Governor of Daman for his archives as titleof transfer. However,
,when Annexes z and 3 and their photocopies are examined, it is
found that these are not authenticated copies such as are alleged in
paragraph 106 of the Reply, They are merely translations in the
Portuguese language of documents alleged to have been'made by
the hlaratha Subedar of Bassein.

222. Itwill be noticed that the Portuguese Government speaks of
the alleged authenticated copies of alleged Sanads as being a
"title of transfer". The Portuguese Government appears to have
,somewhat changed its stand. It stated in paragraph 91 of the Reply
.that the Portuguese did not receive sovereignty from the Marathas
.under the Sanads. (See paragraph 204 above.) Now, however, con-
tradicting its previous statement, it allegesthat its "title oft~ansfer"
is contained in authenticated copies of alleged Sanads issued by the
Maratha Government. However, the documents relied upon by
Portugal are found to be without the seal, signature or any other

mark of the Maratha authorities. They purport to be translations
in the Portuguese Ianguage of alleged Maratha documents. Further,
they purport to be reproductions of alieged Sanads issued not by
the Maratha Sovereign but by a Maratha official, namely, the
Subedar of,Bassein. It is therefore difficult to' take account of a
translation carried out by. the Portuguese authorities of an alleged
order issued by a Maratha Officia1asconstituting the title of Portu-
gal to sovereignty over a part of Maratha territory. It has already
been shown above and admitted by the Portuguese Government
that a Sanad could not bring about cession of territory in sover-
eignty. These alleged Maratha documents, which are, in fact,
.Porfz~guesedocuments stating the existence of alleged Maratha

documents, do not lend any support to the claims of the Portuguese 120 REJOINDER OF INDIA (II 59)

Government. Thus Annex 2 to the Memorial which is an entry in the
Portuguese register stating the existence of an alleged order issued
.in the Marathi language by Ananta Rao Bikaji, the Subedar of
Bassein, to a subordinate Maratha Official,reads :-

"the remaining villages shali be handed over to the said Govern-
ment and the people and village headmen of the said Pragana shall
be instructed to obey the said Government".

Annex 3 to the Memorial is also an entry in a Portuguese register
of an alleged order issued by the Subedar of Bassein to the village
headrnen and cultivators of Nagar Aveli asking them to "obey
without questioning the Portuguese Government of Daman".

223. As has been set out in paragraph 2 of this Rejoinder above,
in spite of the requests of the Government of India, the Portuguese
Government has faiIed to produce the relevant documents in the

Marathi language. They state in paragraph' 106 of the Portuguese
RepIy that "authenticated copies" of these alleged documents were
transmitted to the Governor of Daman for hi5 archives. It mav be
asked that if according to their own staternent the ~ortuiuese
received "authenticated copies" of the alleged copies and lodged
them in their archives, why is it that the authenticated copies have
not been produced.

224. The Portuguese Government next cites Annex 4 to the
Memorial. It states in paragraphs 106 and 107 of the Reply that
"a receipt" was made out by the Agent of the Governor of Daman

and that in this receipt the Portuguese Agent stated he had received
the possession ofthe villages in the name ofthe Portuguese Sovereign.

225. The Government of India would like to point out that it is a
well-known fact that the Marathas were unable to read the Portu-
guese language and that al1the letters which were received by the
Iilarathas from the Portuguese were in the Marathi language. No
receipts in the Marathi language have been found in the Maratha
archives by the Government of India. If any such receipts had been
made and passed on to the Maratha Government, the Portuguese

archives would have contained a copy of such receipt. As has been
stated in paragraph 2, the Government of India requested the
Portuguese Government to produce copies of these receipts in the
Marathi language. The Portuguese Government has failed to respond
to this request, The Government of India is therefore entitled to
come to the conclusion that no such receipts were made and handed
over to the Maratha authorities l.

It would not havebeen inconsistenfor a Saranjarndar or Jagirdato have
.sisteot with the rights of the Sovereign Granto announcetto the Patels and
cultivatorthat revenue had been assigned to a Saranjamdar or Jagirdarand
.that revenue wasto bepaid to him. Such acknowledgementof the receipt of the
grant and announcementto the cultivators would have iwayoconveyed a larger REJOINDER OF INDIA (II59) 121

226. Quite apart from the non-authentic nature of the documents
relied upon by the Portuguese Government there iç nothing in the
language of these documents to suggest that the Marathaç ceded a
part of their territory infull sovereignty to the Portuguese.

227. At paragraph 108 of the Reply the Portuguese Government
states that on the 29th May, 1783, a "Luso-Maratha Accord" was
entered into on the 29th May, 1783, under the title of "Re-adjust-
ment of the accord of the Pragana of Nagar Aveli". The Portuguese
Government have produced this document at Annex No. 32 to the
Portuguese Reply. The Government of India has exarnined this
document and finds that it is not a bi-Iateral accord as is alleged

by the Portuguese Governrnent. The document is in the Portuguese
language and is not signed by the Marathas and no indication is
found in the document that the Marathas were a party to it. At
the bottom of the document there iç found an incription said to be
made by one Mascarenhas which reads:

"These conditions will take effect when my Governor Mr. Joao
Gomes Da Costa will decide accordingly and in the opposite case
willbe without any effectanywhere."
Nothing is found in the document to indicate if the Governor

did indeed accept these conditions. The Government of India do
not attach any value to this document and they deny that it isa
"bilateral" document as is alleged by the Portuguese Government.
However, the text of this very document is ço damaging to the
Portuguese argument that the Government of India would like to
deal with it in some detail. .

227a. At paragraph 108 of the Reply the Portuguese Govern-
ment quoted only a part of the title of this alleged document. The
full title reads:

"RecaMng the agreement ofthe Pragana Nagar Aveli of revenue
of bygone times which gave to the Portuguese Government ofthe
place of Daman the sum of Rs, ~z,ooo,"
The very title of the document shows that it related to the gant
of the revenue of the sum of Rs. 12,000. No reference is found in the
entire document to any alleged treaty. The document contains not

one word about cession of territory in sovereignty. On the contrary,
its provisions indicate clearly that its sole subject rnatter was the
grant of revenue. Article 7 of the document is particularly note-
worthy. Itreads:

title to the grantee. It was not uncommon for the sovereign grancal1 upon
the Patels and cultivatoto "make themselves amenable"to the new rent col-
India submits thatifany receipt was taken frothePortuguese as it must have
been taken from Dhume at the same time or if any announcemof the Ssranjam
grant was made, these must have been made in words quite different fthose
alleged by the Portuguese Government.The documents produced by the Portu-
guese Government have no verisimilitudeand are not authentic.122 REJOINDER OF INDIA (II 59)
"the revenue of the said Pragana in the ;Darbar of Punem being
moreorless,the Sarkar willhand over thevillagewhich is preserved,
so as to completethe sum of Rs. Ia,oooand if the revenuesare more
thesaid Sarkar will havewhat is in excess",

Thus, under the above provision the Portuguese ~overqment'
couldcollect only a sum of Rs. 12,000 and no more. Any excess over
that .sum was to be surrendered to the Maratha Government. As
the Government of India has stated in the previous section on the
nature of the Maratha grant of Saranjam and Jagir a Saranjamdar
or Jagirdar could not coliect revenue in excess of the sum assigned,

the excess which was termed "towfeer" (see paragraph 103 above)
was to be returned to the Sovereign Grantor. This very provision
proves conclusively the fiscal nature of the grant and negatives
any idea of the Portuguese having been granted sovereignty over
any part of Maratha territory. Under this provision they were
under an obligation to hand over the surplus of revenue over and
above .Rs. xa,ooo taken from the Maratha villages in Dadra and
Nagar Aveli. The Portuguese Government has relied on certain.
articles of this alleged document as corroborating its assertion that
Portugal had acquired sovereignty'over the Maratha villages in.

question. (Itwili be noticed that the Portuguese Government does.
not assert that this alleged accord provided for cession of territory
in sovereignty. The Portuguese Government'relies on this allegedc
accord only in order to find'corroboration of previously acquired
sovereignty). Thus the Portuguese Government asserts that
Article 3 recognizes the existence of '"ttvo mutually exclusive
sovereignties", that Article 2 recognizes "the full military power"
of Portugal over the villages and that Article 5 recognizes "in
addition to the full sovereignty over Nagar Aveli a,right of transit
between Nagar Aveli and Daman". The Government of India will

now proceed to examine these assertions of the Portuguese Govern-
ment.
228. Article z of the alleged document which has been relied upon
by the Portuguese Government as assuming the existence of two
"mutually exclusive sovereignties" reads :

"If the farmers ofthe said Praganas go to Nagar Aveli itwillnot
be accepted that they stay,and if theygo from the said Pragana
.Nagar Avelito the Praganas of the Sarkar they will be sent back."

From the above provision the Portuguese Government concludes
that the Marathas had ceded to the Portuguese sovereignty over
the. Pragana. Howevcr, it is obvious that the Portuguese argument
is untenable and that no such intention can be found in the above
quoted Article z. The very word "farmers" in Article 2 makes it
clear that this provision relates .to the collection of revenue and
the desirability of disuading cultivators from l&avingtheir land and.

thus bringing about a decrease in t'he agricultural revenue. : I
REJOINDER OF INDIA (11 59) 123
I
-.229,. Next the Portuguese .Government relies on Article .3 for 1
recognition of Portugal's rnilitary power over the Pragana. This
article reads :
"in the said Nagar AveliPragana there are many CollesVarlys who
are Dubalas and if the latter create malay, which means disorder,
causing damages, peace wiil be restored and they wiil be asked to ;
refrain inorder not to cause damages".
1
1.n the above provision the Portuguese Government finds its
title to "full military sovereignty" over Pragana Nagar Aveli.

The Government of India is unable to find in'the above provision
any justification for coming, to such a conclusion. As has Geen
stated in the preceding Section III a Saranjamdar or Jagirdar was
obliged as a condition of his grant to see that the revenues of the
villages included in his grant did not diminish and that no damage
was caused to the crops. That obligation did not in any way entitle
the Saranjamdar or Jagirdar to have "full military power" or to

assert rights against the Sovereign Grantor. Article 5 in which the
Portuguese Government seeks to find "full sovereignty" and a
"right of transit" reads:
"al1the 'jarne'for the suppIieç of the çaid Nagar AveliPragana as
wellas other dues ln kind will be exernpted from the duties cf the
, said Pragana".

The word "jameJJ means revenue 'collected by the Saranjamdar
or Jagirdar in cash or in kind. This provision relates to the reser-
vation of Zakat duties on the part of the Maratha Government and

a dispensation from payment of Zakat on the revenue coilected by
the Saranjamdar or Jagirdar in cash or in kind, that is in agricul-
tural produce. The meaning of Article 5 therefore is that agricul-
tural produce or cash which formed part of the revenue yield
assigned to the Saranjamdar was exempted from the normal
Maratha tax. These Maratha taxes were levied in al1 Rlaratha

territory including Maratha territory of Dadra and Nagar Aveli.
As will be seen from the following Section 5 (see paragraphs 265
and 266 below) in actual fact exemption from Rfaratha tax was
dependent on orders and permits-granted by the Marathas from
time to time according to their will and discretion. Both the Mara-
tha and Portuguese documents make it quite clear that the exemp-
tion from Zakat was precarious and was often withdrawn by the

Maratha Government. However, whenever the exemption was
granted it applied only in respect of "jame" of revenue and to
,nothingelsel. ,

'' It will be noticed that the Portuguese Governmentinterpretsa concession
in respect of exemption from duties onduce of Xagar AveIi in an.alleged docu-
ment as constituting a"rightof transit".The Portuguese Government adopted
this Iinof argument in the Applicationand in the Mernorial but in the face of
evidence produced by the Government of India of Maratha and'Britishpractice124 REJOINDER OF INDIA (II 59)

'.230. At paragraph x12 of the Reply the Portuguese Government
refers to another alleged "bilateral" document which it describes
as a "netv Luso-Maratha accord concerning the villages transferred
to Portuguese Sovereignty". The photocopy of the document at
Annex No. 8 to the Memorial reveals a document in the Portuguese

language entered in the form of an entry in a Portuguese book and
containing neither seal nor signature nor giving any indication of
the parties to the document or the date of the document. At para-
graph Ir2 the Portuguese Government asserts the reliability of this
document and states:

"it would be unlikelyto assumethat it was forgedby the Portuguese
sinceil contains obligations,restrictions and charges which by their
very nature the Portuguese would have no interest in inventing
against themselves".

The Government of India has not charged the Portuguese Govern-
ment with having forged a document nor indeed does it find it
necessary to do so. it is only necessary to look at the photocopy of
the document to find that it is not an authentic document, and that
it does not contain any indications whatsoever of being a "bilateral"

document as it is alleged to be.
231,The above quoted statement ofthe Portuguese Government,
however, has the ment of admitting that the alleged "bilateral"
document contains "obligations, restrictions and charges" on the

Portuguese. Indeed as the Government of India has already stated
in paragraph IIO of the Counter Memorial this very document,
were it to be authentic, would corroborate further the limited,
non-sovereign, revocable nature of the grant to the Portuguese
and the obligations undertaken by them as Saranjamdars of the
Marathas. Under its terms the Portupese are required to preserve

pagodas; to respect the usages and customs and religion of the
inhabitants of the Pragana; not to convert the religion of orphan
children; to restrain the turbulence of the Colles and above al1
not to raise Imarat. The last obligation, namely, not to raise an
imarat negatives completely any idea of the Marathas having made
a cession of territory in full sovereignty to the Portuguese.

consistentlythat from the earliest timesthe Portuguese wexe
incapable of asserting their claim to exemptfrom duties on goods in transit
between Nagar Aveli and Daman, the Portuguese Government changed its stand-
point andclairned that Portugal's alleged ofgtransit was in no way connected
with the existence or non-existence"immunities", and that the fact that Por-
tugal did not enjoy exemption from customs duty between Daman and Nagar
Aveli didnot adversely affecPortugal's alleged "right of tranHowever, the
diffrculty which the Portuguese Governmenfinds in rnaintainthis standpoint
isto be seen from such instances as the above where it relapses into seeaing
"right of transitfrom an alleged exemptionfrom customs duties. REJOINDER OF INDIA (II 59)
125

Maratha Sovereignty over Dadra and Nagar AveEi subseq%ent tu
grants of Saranjam. or Jagir in 1783 aad 1785

232. At paragraphs 93andthe following of its Counter-Memorial,
the Government of India demonstrated that Maratha practice and
conduct subsequent to the grant ofSaranjam or Jagir to the Portu-
guese in 1783 and 1785,in the villages in Dadra and Nagar Aveli
further revealed the fiscal naturof the grant which th: Marathas
had made to the Portuguese. The Government of India referred to
certain documents of the Maratha Government which confirm that
nght up to its extinction in 1817-1818, the Maratha Power asserted
its sovereignty over Dadra and Nagar AveLiand exercised its sover-
eign rights for example by collecting certain taxes in Dadra and
Nagar Aveli, by "attaching" the revenues of Dadra and Nagar
Aveli,by posting a special Maratha Guard in Dadra and Nagar
Aveli, and finally by revoking the grant altogether.

233. Thus in paragraph 96of the Counter-Mernorial, the Govern-
ment of India showed that from the year 1783when the first grant
of Saranjam was made, the Maratha Government maintained
detailed accounts ofrevenues assigned to the Portuguese in Saranjam
tenure. The accounts were maintained from the year 1783 right up
to the time of the extinction of the Maratha Power in 1817-1818.
These Maratha documents not only define and describe the nature
of the grant made io the Portuguese as a Saranjam grant but also
describe the justification for the assignment of revenues as annuaI
"expenditure" on political relations. These documents show thatthe
Maratha Government maintained detailed accounts of the public
revenues due to the Maratha Sovereign and of their distribution to
various assignees.

234 At paragraphs 97 and IOI of the Counter-Memorial, the
Government of India demonstrated that even after 1783 when the
first grant of Saranjam was made to the Portuguese, the Maratha
Government continued to Ievy in Nagar Aveli the tax known as
"Kamnagar Zakat", and that when the Portuguese failed to pay
that tax or to account for its wrongful collection, the Maratha
Government confiscated their grant and recovered the amount from
the revenue of Nagar Aveli.

235.In paragraph 104 of the Counter-Mernorial the Government
of India showed that shortly before being conquered by the British
the Maratha Ruler had reçolved to revoke the grant of Saranjam to
the Portuguese. The reason for this was that friendly relations
between the Marathas and the Portuguese had broken down as a
IO 116 REJOINDER OF INDIA (II 59)
result of the attitude adopted by the Portuguese and the Maratha
Ruler had received representations from his subjects in Dadra and

Nagar AveIi that the Saranjamdar had not fulfilled his obligations
to the Maratha State.
236. In a chapter of the Reply entitled "Luso-Maratha relation-
ships subsequent to 1785" ~he Portuguese Government, notw-ith-
standing al1the evidence to the contrary, contends that, starting in
1783 and 1785, the Portuguese State began to exercise its "full
sovereignty" over the territory of Dadra and Nagar Aveli. As the
Government of India has demonstrated above, and will further
demonstrate below, the Portuguese Government is entirelyunable

to show either that it acquired a valid title to sovereignty over the
territory of Dadra and Nagar Aveli in 1779 1783 and 1785 ,r that
subsequent to the revenue grants in 1783 and 1785, the Maratha
Power acquiesced in the gradua1 usurpation on the part of the
Portuguese Government of Goa of Maratha sovereign rights over the
territories in question.

237. In an effort to explain away the fact that al1 the account
papers of the Maratha Government describe the grant to the Portu-
guese as an assignment of revenue in Saranjam tenure, the Portu-

guese Government puts forward several distinct arguments. At
paragraph 122.ofthe Reply it states:
"These accounts are documents of the interna1 service of the
Maratha Chancelloryand they couldtherefore never have prevailed
over theexfireslletterofthe Treaty of 1779nor over the Supple-
mentary Accordsof 1783 and 1785."

Thus the Portuguese Government disputes the relevance of
Maratha documents, asserts the existence of the alleged treaty of
1779 and the alleged accords of 1783 and 1785. The Government of
India has already shown in the preceding sections the relevance of
the documents of the Grantor, the non-existence of the alleged
treaty and the alleged accords, and demonstrated that Article 17
.of the Portuguese text of what is alleged by the Portuguese Go-
vernment to be a "treaty" itself describes the Maratha grant as
"contribution of Rs. 12,000" and "Jagir", and that the documents
which are alleged to be "bilateral" accords contain conditions and
restrictions incompatible with cession of sovereignty.

238. In the same parairaph 122 of the Reply the Portuguese
Government gives another explanation :
"They (the Maratha accounts) must be considered in the light
of the financialstandards of the tirne and therefore in no way
decrease the value of the cession made by the Marathas to the
Portuguese.We must take into account that in the Maratha Empire,

Our italics. REJOINDER OF INDIA (II 59) 127

as with a great number of other peopleswith a feudal type of organ-
tion was assigned to certain individuals (assignees-fermiers)in theec-
legalform of tax assignment (fermage). The transfer of the villages
of Nagar Aveli to Portuguese domination therefore made it necess-
ary to include in the accounts a deduction, the registry entry of
which was transmitted from year to year to serve as a guarantee
for the assignees,to the Subedar themselves and their subordinates."

And in a footnote:

"That is why the Maratha memorandum of 3rd June, 1780, when
it states that a sanad must be sent to the Subedar of Bassein for
the transfer of the villages to the Portuguese, expressly states that
'the total receipts of the revenuemust be shown on the debit side'."

The above statement of the Portuguese Government in itself
constitutes an admission that it was the common practice of the
Marathas to assign the collection of revenues. It is the submission
of the Government of India that the Portuguese were the recipients
of an "assignment of revenuesJ' and that they were the "assignees"
of the Maratha Government l.

239. The Portuguese Government then goes on to assert in the
same paragraph 122 of the Reply that the Maratha account papers
at Indian Annex C. Nos. 18, 20 and 21 themselves prove that
Portugal had "full domination over Nagar Aveli." Thus it states:

"these accounts confirrn absolutely that the Portuguese State had
full dominationJ'over Nagar-Aveli, since it is constantly repeated
there that the Pragana had been given to thePortuguesein entirety
or that it had beengiven togetherwith the Zakat ('has been given
from the Sarkar's territor* to the Firangee of Goa as Dumala in
entirety2, 'in entiïeta together with Zakat', 'entirely given to the
Firangee of Goa', etc.".

240. In view of the inability of the Portuguése Government to
agfee upon the effect and meaning of the Maratha account papers
the Government of India is obliged to deal with them in some detail
and to demonstrate that they do not in any way support the asser-
tion made by the Portuguese Government:

241. Indian Annex C. No. 19 consists of account papers of the
Central Secretariat of the Peshwa of 1788, 1789/1792, 1804/1805,
1809, 1811, 1814, 1815, 1816 and 1817. The very first document (at
1, p. 255)reads :

' The Portuguese Government erroneouslydescribes the MarathaSubedar of
Bassein as an "assigneeof the Maratha Government. In fact, thSubedar was
an oficiaI of the Maratha GovernmenHe was the civil and military Governor of
Prant or Taluka Bassein, and Dadra and Nagar Aveli formed part of hicivil
and miliJary jurisdiction.
Emphasis of the Portuguese Government. "Expenses in respect of Foreign Darbar Assignment to the
Firangee of Goa, of Pargana Nagar-Haveli, Prant Bassein, with
Zakat, forthe year ..1788
Said Pargana ................ Rs. 10,470-0-0
Zakat ................... Rs. 1,530-0-0

Rs. 12,000-0-0

Total oftwelve thousand rupees may be accounted for asexpen-
ditureon Foreign Darbar on account ofFirangee of Goa.
Dated .................. .[13th June 17881

Sanctioned."
The above document gives graphic illustration of the following
points :

(1) Thegrant to the Portuguese was described as "Expenses"
in respect of foreign affairs.
(2) These "expenses" were yearly. The assignment was "for
the year 1788".
(3) The words "Said Pargana" stood for a sum of Rs.

10,470-0-0 as revenue for a particular year.
(4) The sum of Rs. ~z,ooo was made up of Rs. 10,470-0-0
revenue and Rs. 1,530-0-0 Zakat:
(5) The words "Pargana Nagar-Haveli, ~rant Bassein"
indicated that Pargana Nagar Aveli formed part of the Maratha
jurisdiction of the Province of Bassein. .
(6) The word "SanctionedJ' at the end of the document
showed that the assignment of the surn of Rs. Iz,ooo had to be
sanctioned each year.

The next document (on the same page 81) dated 1791/1792 states
the expenses on the Portuguese as Rs. 15,000 and reads: "deduct
Rs. 3,000 on account of villagesin Sholapur Pargana given to the
Firangee Vakil", that is the Portuguese envoy, Narayan Vithal
This document shows that the expression, "giving of
Dhume.
villages" was used in respect of the grant to Dhume no less than in
respect of the grant to the Portuguese. The document of r804/180~
(at 1, p.256) is a mahal-wise audit of accounts of Taluka Bassein
and it describes the Mahal of Pargana Nagar Aveli as "expended
in the name of the Firangee of Goa". Another document of x805
(on the same page 256) uses the word "Dumala". It reads: "the
amount of Rs. 10,980 be shown against Pargana Nagar Aveli and
given in Durnala to the Firangee of Goa. Account must be main-
tained accordingly." The meaning of the word Dumala has
already been explained by the Government of India in Section
III above. It signifies a grant which reverts to the Sovereign
Grantor on the expiry of its tem. (See Indian Annex F. No. 40.) REJOINDER OF INDIA (II59)
129
The document of 1809 (at 1, p. 257) reads:

"Foreign Darbar jafairs] expenses on account of Firangee ofGoa
in the year ........... : ......... [~Bogl
Mahal of Pargana Nagar Aveli is given as Dumala in entirety.
Estimated Akar [revenue] ofthe said Pargana ... Rs. 10,980
Zakat ..................... Rs. 1,020

Rs. 12,000

In al1 twelve thousand rupees as allowanceto Firangee of Goa.
The revenueof the Pargana including Zakat should be shown as
givenin Dumala."

In the sarne manner the other documents'of 1809, 1814,1816 and
1817 given at Indian Annex C,No. 19 describe the grant as "assign-
ment of revenues", "the grant of Mahal", or "villages given in
Dumala". A document of 1815 (at 1, p. 258) states: "Mahal of
Pargana Nagar-Haveli was given to Firangee of Goa as Saranjam
in entirety."

242. The Government of India haç explained above in Section III
that the expressions "assignment of revenue", "grant of Mahal",
"grant of villages in Dumala", "assignment of villages", were

all used in respect of a Saranjam or Jagir grant. The expression
"given in entirety" used in this connection signified "grant of entire
or total revenue", the Marathi equivalent being "Mahal Darobast".
The Portuguese Government finds in the use of the words "given in
entirety" evidence of the "full transfer of sovereignty" from the
Marathas to the Portuguese. The Portuguese Government is plainly
under a misunderstanding as to the significance of the revenue
terminology of the Maratha Government.

243. Indian Annex C. No. 20 consists of detailed account papers
of the Central Secretariat of the Peshwa at Poona of 1785, 17841
17~5~ 1786/1787> 1791/1792> 1793/1794, 1796/1797> 17971179~~
1805/1806 and 131211813. The very first document at 1, p. 260,
reads :

"Expenditure on account of assignment.
Rs. 12,000 Pargana Nagar Aveli in entirety together with Zakat
has been assigned to the Firangee.Akar [revenue]of the
same according to assignment.
Rs. 3,000 Two villages from Pargana Khaladi-Pawadi assigned
to the Firangee Vakil, Narayan Vithal Dhume. Akar of
the same according to assignment.

Rs. 1,746-12-0 Viliage Suklav
Rs. 1,253-4-0 Village Kumbhariye.

Rs, 15,ooo."I3O REJOINDER OF INDIA (II59)

244. Annex C. No. zr consists of account papers in still greater
detail. These were prepared and maintained in Taluka Bassein of
which Nagar Aveli formed part. The document of 178711788(at
1,p. 282) reads:

"The Firangee of Goa and AisVakiEwere granted Savafijam for
the Kama1 Berij [total revenuyield] ofRs. 15,000."

This document like many other documents describes the grant
to the Portuguese and to Narayan Vithal Dhume in identical terms
and as Saranjam. The document of 1793117( 9at 1,pp. 282 and 283)
after deducting 26 villages from the number 719, proceeds to
account for the revenue of the "remaining" 693 villages. Out of
the 693 which are said to "rernain" with the Sarkar, 69 are
described as given as Dumala to the Portuguese of Goa1.

245. The Government of India would not have set out the above
facts in such detail were it not for the refusal of the Portuguese
Government to accept the clear implications of the above cited
Maratha documents. These documents maintained by the Marathas
after they made the grants to the Portuguese right up to the end
of their Power in 1817/18 show quite clearly that they considered
Dadra and Nagar Aveli as an integral part of the Maratha domain

and a division ofthe Maratha Province ofBassein. In these documents
the grant to the Portuguese was descnbed as assignment of revenue
in a tenure known as Saranjam and the assignment was accounted
for as yearly expenditure on political relations with the Portuguese
of Goa. These documents also make it clear that the sum set apart
fo~ that objective was Rs. 15,000 and that this sum included the
Saranjam of Rs. 3,000 to the Portuguese envoy Narayan Vithal
Dhume. The words used in respect of the grant to Dhume-"giving

of villages"-signified nothing else than that the revenues of certain
villages were assigned to him in Saranjam tenure. Finally, these
documents show that the original grant to the Portuguese in 1783
and 1785 was a grant of Saranjam and that in so far as the Marathas
were concerned itcontinued to be a Saranjam or Jagir and nothing
else right up to the time when they were conquered by the British
and became extinct as a Power.

l At paragraph122the PortugueseGovernmentStates that rovillages of Pargana
Neher and IIvillages of ParganaKhaladi were ceded by the Marathasto the
since they were ceded to the Portuguese State in exchange for other viliages which
the Portuguese transferrto the Alarathas, also in full sovereignty in the Pargana
Naer". It has been shown above in paragraph 30 that in 1741 there was no exchange
of territory between the Portuguese and the Marathas, and the Portuguese assertion
is without foundationn fact. The Portuguesstatement in paragraph122 that
these villages are entered in the Maratha documents in exactly the same way as
the villages of Dadraand Nagar Aveli isalsoruAs will be çeen in the document
of 179311794 the villages froPargana Neher and Pargana Khaladi-Pawadi
were not described as Saranjam or Jagir.educfrom the number 719, and they REJOINDER OF INDIA (II 59) I3I
Ramnagar(or Ghambigad) Zakat ,

246. In paragraphs 97 and the follol~ng of its Counter-Mernorial
the Government of India demonstrated that on several occasions
after the grant of saranjam to the Portuguese in 1783 and 1785 the
Maratha Government confiscated the grant and "attached" the
revenues in order to recover debts owed to them by the Portuguese
and that these debts related to a Rlaratha tax called Ramnagar
Zakat. At paragraph gg the Government of India showed that in

1783 and 1785 the Maratha Government reserved to itself the col-
lection of Ramnagar or Ghambirgad Zakat and it continued to
collect thistax from its dominions including Pargana Nagar Aveli.
The Government of Tndia referred in this connection to Indian
Annex C. Nos. 23, 24,25, 26 and 27, and submitted that the prac-
tice of the Marathas showed beyond any doubt that they had not
parted with sovereignty over the Pargana of Nagar Aveli in 1783 or
1785, or at any subsequent date and that they had no intention of
doing so. (Counter-Memorid, paragraph 103.)

247. In paragraphs 115 to 120 of the Reply the Portuguese
Government referred to the question of Ramnagar Zakat and
stated :-

(1)that it was not certain that in 1785 the Marathas had
excluded Ramnagar Zakat from the grant;
(2) that in any case there was a dispute between the Marathas
and the Poduguese on this point;
(3) that the dispute had no connection with the question
of Portuguese sovereignty over Dadra and Nagar Aveli; and

(4) that the disagreement was resolved to the satisfaction
of the Portuguese Government.

As the Governrnent of India will show below, none of the above
assertions of the Portuguese Government find support in fact.
248. In the firstplace, there isno truth in thestatement that there
was any doubt whether the Marathas had reserved the collection of
Ramnagar of Ghambirgad Zakat in 1783 and 1785 l.In paragraph

116of its Reply the Portuguese Government referred to the alleged
"accords of 1783 and 1785". The Government of India has already
shown in paragraphs 227 to 230 above that these documents are
utterly unreliable as expressing the intentions of the Maratha
Government and have no value of any kind as aileged "bilateralJJ
documents. However, even these documents relied upon bythe Por-
tuguese Government show the Portugueseassertions to be complete-
ly illfounded. Thus, Article 5 of the alleged accord of x783reads:

' As isconceded by the Portuguese Government,Ramnagar or Ghambirgad
Zakat was utilised for the maintenaof the Maratha fortress of Ghambirgad.
1783 and 1785and continued to be maintainby the collectiofRamnagar orof
Ghambirgad Zakat.132 REJOINDER OF INDIA (II59)

"The collection of dues belonging to the Serra of Ghambirgad
usually performed ai Fatepur in the customary way willbe made
by the Sarkar without any hindrance, so that this be observed."
(PortugueseReply, Annex 32.)
And Article IO of the alleged accord of1785 reads:

"The collections assigned to the TaxCollecterof the Marathas
in the said Pargana shall be paid without doubts, certifying the
said collection with the debtors." (Portuguese MernorAnnex 8.)
Thus, even on the basis of these alleged "accords", there could
not be any doubt that even after 1785 the Marathas were to collect

Ghambirgad taxes in Nagar Aveli and that the Portuguese were to
pay these Maratha taxes "without doubts".
249. At Indian Annex C. No. 24 will be found a memorandum
regarding Zakat of Prant Bassein of the years 179211793. From this
document it is clear that the Portuguese never defaulted in the
payment of Ramnagar Zakat or created any "dispute" before 1790.
This document states that in 1785 the grant to the Portuguese was
made up of Rs. 10,98 b0eing revenue of the Mahal of72 villages and
Rs. 1,020 being Zakat of Dadraand Naroli and that Ramnagar Zakat
mas not included in the grant.It states that in 1790 and 1791 the
Portuguese collected and appropriated certain items of Ramnagar
Zakat and also failed to pay certain other items of Ramnagar

Zakat to the Maratha Government. A sum of Rs. 1335 is shown to
be due from the Portuguese on this account. One of the items of the
debt is described as follows:
"The Firangee cames rice etc. to Daman in addition to rice
received in payment of assessment. Formerly custondzctyzuaspaid
onthis.The same isnot beingpaid.Estirnated receipts-Rs125-0-0."

Similarly, the sum due from the Portuguese for the year 1791
was calculated at Rs. 2,169. The same document shows that the
Portuguese had accepted the position that Ramnagar Zakat stood
excluded from the grant of1785 ,ad agreed to refund the amounts
standing in theirname, had actually paid Rs. 535 and promised to
pay the balance of Rs. 3,504 later "as the year was a lean one."
250. At paragraph 118 of its Reply the Portuguese Government
referred to the above mentioned document and stated that it
showed the existence of "full sovereignty" of the Portuguese State
over Nagar Aveli. The Portuguese Government quoted the following
paragraph from the document:

"as his Ryots would bemolested ifthe collection wereto be made by
the Sarkar a peon of the Sarkar and another of the Firangee should
make the collection and payment should be received by the Sarkar".

The Portuguese find in the above expression an admission of
the Maratha Government that it was unable to send its represen-
tatives to Nagar Aveli without their being accompanied by repre- REJOINDER OF INDIA (II59) I33
sentatives of the Portuguese authority. If the above passage is read
in its context it will become clear that it cannot bear any such

interpretation. The intention of the Marathas clearly was to ensure
that the Portuguese who had made a wrongful collection of Ram-
nagar Zakat,and from whom the debts were due, should be present
at the time of collection ofthe revenue from the Ryots (cultivators)
so that they should not collect the same amount from them a
second time. This is the clear meaning of the words which the
Poduguese Government has quoted in support of its contention
that itcontains an admission of "full sovereignty" of the Portu-
guese State over Nagar Aveli.

"The dispute"

251. The above document (Indian Annex C. No. 24) relates to
the first default of the Portuguese Government in relation to
RamnagarZakat, namely in 1790 and 1791 H.owever, inanattempt
to show that the Portuguese never understood themselves to be
liable to this Maratha tax, the Portuguese Government stateç in
paragraph 117 of the Reply that the "dispute" in regard to Ram-
nagar Zakat must have started from the time of the transfer of
Nagar Aveli and of Dadra to Portuguese sovereignty. In support of
this statement they citea letter of1787 from Dhume to the Gover-

nor of Daman and a letter of unknown date from the Governor of
Daman to Dhume. The Portuguese Government states that Dhurne's
letter indicates the existence of a dispute relating to Ramnagar
Zakat "as early as 1787".

252. In the first place thegrants were made in 1783 an1785, and
a letter of1787 cannot therefore prove the existence of the dispute
"from the time of the transfer of Nagar Aveli and Dadra to Portu-
guese Sovereignty". In the second place, this very letter of Dhume
not only fails to support the assertion of the Portuguese Govern-
ment but shows that produce of Nagar Aveli was subject to
Maratha tax; that the existence of the right of the Marathas to
exact this tax was known to Dhume; and that in his letter to the

Governor of Daman he insisted that no attempt be made to evade
the Maratha tax. Dhume warned inhis letter that if there was such
evasion the Maratha Government would altogether revoke the
exemption'granted to the Portuguese from Zakat on the "Jame"
from Nagar Aveli. ("Jame" means revenue yield or collected
revenue. Since revenue was often collected in kind-in the form
of agricultural produce-"Jame" also included such produce.)
Speahng of the practice of evasion he said:

"If it iç trüe ymust stop it. Othenviseunder nocircurnstances
would this Sarkarallowthe carrying free duty of any.goods even
from Nagar Aveli."I34 REJOINDER OF IPYDIA (II59)
At Annex 33 to the Reply the Portuguese Government printed
an extract from Dhume's letter which, while it made Little sense,

seemed to suggest that Dhume was speaking about "the affair of
Ghambirgad regarding the dues from Nagar Aveli". The photocopy
of the above Annex 33 shows that Dhume's letter bears quite a
different meaning. A translation of the photocopy will be found at
Indian Annex F. No. 43. As will be secn quite clearIy from the full
text of Dhume's letter he wrote of two distinct matters: (1) the
Saranjam received by him from the Marathas, and (2)the duties
imposed by the Marathas on the produce of Nagar Aveli. First, he
apologized to the Governor of Daman for having accepted a Saran-
jam from the Marathas and he assured him of his loyalty to Portu-
gal by relating to him what he had said to the Maratha Prime
Minister :

"1 am a servant of the King of Portugal. 1 cannot receive gifts
from another Nation, as the said King has a lot to giv..."
He introduced this matter by speaking of Ghambirgad collections
in lzissaranjam villages. There is no mention in the letter of the
question of Ramnagar or Gharnbirgad Zakat in Nagar Aveli or
the existence of any 'doubt in the mind of Dhume as to the rights
of the Marathas to levy taxes inside as well as outside Nagar Aveli.
Next, Dhume wrote about Maratha customs dutieç on the produce

of Nagar Aveli. He stated:
"You should never ailow the residents of Daman to bring goods
of any kind on the grounds that they are goodsof 'Zame'belonging
to Nagar Aveli, nor to cut the timber of any quality from the Par-
gana, whether for private purpose or for their sale, except and only
the quantity which is necessary for the Royal Service.fthis is not
done it is not only detrimental to the State but also the sure way
of bringing about complaints about the dutie..."
and again:

"One of the most serious complaints ofthe lessorsof the custorns
places by the route ofNagar Aveli,and alsoIargequantity of timber
for selling,besidesarrying goods belongingto the said Nagar Aveli.
If tkis is tryozlmuststop itO.thewise under nocivcumstances wozlld
thiSsarkar allowthecarryingjresof duty oany goods evenfrom Nagar
Aveli."

The above passages were excluded by the Portuguese Govern-
ment frorn the printed Annex 33 to the Reply. These are the
passages which reveal the fact that it was within the knowledge
of the Portuguese Government of Goa even in 1787 that the car-
riage of the produce of Nagar Aveli to Daman was at the mercy
of the Maratha Sarkar. Asthe Govemment of India will have oppor-
tunity to show later (paragraphs 265 and 266 below), in the light of
this letter of Dhurne it becomes even more clear that the alleged

1 Our italics, REJOINDER OF INDIA (II59)
I3.5
Sanad of 26th April 1799 was nothing but a Dastak or an ad hoc
and temporary permit for the carriage of certain producof Nagar
Aveli free of Maratha tax, and not a concession of a permanent
nature.

253, Annex 34 to the Portuguese Reply which is cited by the
Portuguese Government in relation to the same subject matter is
entitled "Instructions from Daman to Narana Sinai Dumo in
August 1789." However, in the photocopy of the document no
indication of the date is to be found. The perusal of the full
document and of Dhume's Ietter at Annex 33 makes it clear
that Dhume's letter was a reply to the letter of the Governor of
Daman and followed rather than preceded it. The Governor of
Daman had complained of the exaction of Maratha duties on the
produce of Nagar Aveli and had asked Dhume to obtain a new
Sanad from the Marathas. In his reply Dhume made it clear that
the exemption from duties on the "Zame" of Nagar Aveli waç pre-
carious and that he would not be able to guarantee its continuance
if the Portuguese Government at Dasnan did not stop evasions of
Maratha tax. The Portuguese Government has omitted from the
printed annex the last paragraph of the document which illustrates
the exaggerated claim of the Portuguese Governor and to which
Dhume's letter itselfisa reply and refutation. A full translation of
the document in the photocopy willbe found at Indian Annex F.
No. 44.

Attachent of theSaranjam.
Maratha Military Guard in Nagar Aveli.
Liabilitytupuy Zakat in 1802 and 1807.

254. At paragraph 119 of its Reply, the Portugiiese Government
states that the question of Ramnagar Zakat was finally settled to
the satisfaction of the Portuguese in the year17gx.In support of
tliis staternent, the Portuguese Government referreto documents
at Annexes 35 to 39 to the Reply. The Government of India will
show that these alleged documents stand contradicted by Indian
Annex C. Nos. 24, 26, 27,28 and 29,and by the very admissions
of the Portuguese Government that in 1802 the Portuguese were
stiU trying to obtain exemptions from Maratha Zakat.

255. Annexes 35 to 39 to the Reply are seen to be entries in the
Portugueselanguage of letters alIeged to have been written in the
Marathi language and exchanged between minor Maratha officiais.
Annex 35 is stated to be a translation in thPortuguese language
of a letterof the year 1791 from the Subedar of Bassein to his
deputy. Annex 36 is stated to be a translation in thPortuguese
language of a letter of 1791 from an "ex-Contractor of Customs of
the jurisdiction of Daman" to the Contractor of Customs of
Ramnagar. Annex 37 is stated to be a letter from a Maratha
Customs collector addressed to another Customs collector. Annex13~ REJOINDER OF INDIA (II 59)

38 is a translation in the PortugueseEanguage of an alleged Sanad
issued by the Maratha Ruler in 1791 .nnex 39 is stated to be a
record in the PortugueseInfiguage of a letter written by a subordinate
collecter of Ramnagar Zakat. The Government of India has care-
fully studied these Annexes to the Reply and found that they are
merely entriesand translations in thePortugueseEanguage of alleged

Maratha originals, andtheir language is such as to render it extreme-
ly unlikely that they are faithfultranslations of the alleged Maratha
documents, were such documents to be in existence. The Govern-
ment of India finds itself unable to accept the authenticity or value
of these documents. From another point of view, also, the value of
these documents, were they proved to be reproductions of actud
documents, is suspect. The photocopy of Annexes Nos. 35 to 38 to
the Reply is found to contain a translation of a "Statement of

Expenses made with the Officiais and Ministers of the Darbar of the
Court of Punem in order to obtain the Sanad relating to the Chauri
of Fattepor, which the coliector of Gambirgar collected in the
Pragana of Nagar Aveli." This statement, which is, presumably,
one submitted by the Portuguese Envoy, Goraksh, shows that he
gave large sums of money to Maratha officiaisin order to obtain
the letters relating to Ramnagar Zakat 1,A translation of this
Statement of Expenses will be found at Annex F. No. 45.

256. The fact that the Maratha documents which were drawn up
subsequent to 1791 show that no exemption from Ramnagar Zakat
was granted to the Portugueçe, itself contradicts and renders with-
out value the above-mentioned documents in the Portuguese Reply.
Reference may be made to the document at Indian Annex C. No. 24
which has been quoted above inparagraphs 247-250.That document
is of17921179 a3 d itshows a sum of Rs. 3,504-5-0, standing in the

name of the Portuguese as arrears in respect of Ramnagar Zakat.
257. The sequence of events Ieading to the attachment of the
Saranjam granted to the Portuguese also destroys the authenticity
and value of the documents cited at Annex Nos. 35 to 39 of the
Reply. At paragraph ~oo of the Counter-Memorial, the Govern-

l It may be noticed that in the photocopy of A38eis found, in addition to
a translatioin the Portugueçe languagea "copy" in the Marathi language of
the alleged Sanad.The worthlessnessof Portuguesetranslationfrom alleged
and its aileged translation areared. The portion in Marathi:f the Marathi document

to the Firangee and Sanad is already issued. You should, therefore. stop the
harassment about the (collection) of share of Zakof Fatepur Chsvadi
henceforth."-
is rendered in Portuguese as:
"1 order by this letter the handingof the dominion of the Sarkar with
its duties to the said State, in order not to haveor dominion in it."

original document in its original langAatranslatioof the documents in the
photocopy of Annex 38 to the Reply is given at Indian Annex F46.o. REJOINDER OF INDIA (II 59) I37
ment of India stated that in 1794 the Maratha Government decided

to recover certain Ramnagar Zakat dues from the Portuguese by
confiscating a part of the revenues which had been assigned to them.
The Government of India cited a document at Indian Annex C.
No. 26. This document is dated 179411795, and it reads:-
"Rs. Annas

3,929 4
The Zakat of Ghambirgad and of other Zakat posts was forrnerIy
received by the Sarkar. Oflate, the Firangee of Goaforcibly collects
the same, on the retext that it forms a part of Nagar Aveli Zakl,
and the arrearsO?previousadministration are beingcarried fonvard
separately. In addition to this, the amount for the last year collected
by him is Rs.3,929.Annas 4. The same shouldbecollected l.If itzs
not paid, the sameshould berecoveredfrom his Mahal '."
In partial impIementation of the above resolution the Maratha
Goveniment recovered a sum of Rs. 787-0-0 from the revenues of
Nagar Aveli. This fact is to be ascertained from the Maratha docu-
ment of 1797 at Indian Annex C. No. 27 which reads:-

"On accountofdisputeover Zakat,attachment wasmade.Arnount
in respectof this attachment Rs. 787-0-0."
258. The Portuguese Government, quite unable to expIain away
the above facts, states in paragraph 120 of the Reply that the
recovery of the above sums in respect of Ramnagar Zakat dues was

nothing but "an abuse on part of the Maratha authorities", and
that the relevant Maratha documents show nothing but "obvious
bad faith on part of the local authorities." However, as appears
from the documents in the file, the resolutions of the Maratha
Government in respect of recovery of arrears of Ramnagar Zakat
are entered in authentic and forma1 documents of the Maratha
Secretariat, and they do not contain any indication that they were
made in a frivolous manner or that there was no authority for the
framing of these resolutions.

259. In paragraphs 101, 102, 109 and III of the Counter-Memo-
rial, the Government of India showed that the assignment of reve-
nues tothe Portuguese from Pragana of Nagar Aveli was confiscated
by the Maratha Government in 1798, and a Maratha military guard
was posted in Nagar Aveli to ensure the collection of the revenues.
As the Portuguese Government admits in paragraphs 120 and 121 of
the Reply, the Maratha Government attached the Saranjam of
Nagar AveIi in 1798 for two reasons. In paragraph IZI of the Reply,

the Portuguese Government admits that there was an attachment
of the Saranjam which took place as a result of the decision of the
hlaratha ruler to make a collection of revenues "over al1his terri-
tories" =.
Our italics.
Ina footnote to paragrap120, the PortugueGovernment denies that the
Maratha Government had decided to "attacal1 its Saranjamsbut statethat13~ REJOINDER OF INDIA (II59)

260. At paragraph 121 of the Reply the Portuguese Government
states, however, that the attachment of Nagar Aveli Saranjam in
1798 resulted in "a full confirmation of the Portuguese sovereignty
over Dadra and Nagar Aveli". In support of this statement, the
Portuguese Government refers to Annexes g,IO, II, 12 and 13 to
the Portuguese Memorial, and Indian Annex C. No. 29.

261. Annexes g, 10, II and 12 to the Portuguese Memorial are
translations in the Portuguese language of alleged letters in the
hlarathi language exchanged between the Government of Daman
and the Maratha commander of Bagavara. As has been stated in
paragraph z, the Portuguese Government has failed to produce

the originals in the Maratha language on the grounds that these
do not exist. The Government of India, for reasons already stated,
finds it difficult to attach value and authenticity to the alleged
documents and their contents. However, even these documents,
as they stand, do not heIp the Portuguese Government. For exam-
ple, in reply to the unjustified complaint ofthe Governor of Daman
about the attachment of the Saranjam of Nagar Aveli and the
posting of a Maratha military guard in Pragana of Nagar Aveli,
the Maratha commander wrote:-

"Asregards your longrecital that 1did not inform you about the
sending of a guard to Pragana Nagar Aveli,1did write two letters
recenrly.The orders ofthe Sarkarare strict. Iisontheseorders that
1 sent the guard: the Most Happy has made collections from his
dominionsand everyone has paid" (Annex rr to the Mernorial).

The above passage shows that the Maratha commander had no
hesitation whatever in sending a military guard to Pragana Nagar
Aveli in pursuance of the orders of the Maratha Sarkar. He was
under no doubt whatever that Pragana Nagar Aveli formed part of
the dominions of the Maratha Sarkar. The very fact that the Portu-
guese envoy at the Maratha Court had to make extraordinary
efforts and to give heavy bribes and gifts to Maratha officials in

order to obtain the removal of the attachment and the military
guard is in itself sufficient to show that Pargana Nagar Aveli was
considered by the Maratha Government as forming part of its
dominions. The Portuguese Government gives no account in its
Reply of the manner in which the Maratha commander was induced
to withdraw the attachment. The Government of India stated the
relevant facts at paragraph Irx of the Counter-Memorial. It stated
there :-

"under instructions from his Government, the ~ortu~uese envoy
to the Poona Court, Vithal Rao Goraksh,made strenuous efforts to

the Maratha Government had only decided to make a collectofnrevenues for
one year over al1 its territoEvidentlythe Portuguese Govemment isunable
means precisely the withdrawal of the assignment of revenues and direct coilection
of the revenuby the Sovereign Grantor. REJOINDER OF INDIA (11 59) I3Y
obtain the removal of the attachment and the withdrawal of the
special Maratha guard. Towards this effort, the Portuguese Govern-
mentsuppliedhimamplefundswith whichtobribeandcorrupt minor
Maratha officials. He was instructed to inform the Marathas that
if the Portuguese requests were not complied with, the Portuguese
on their part would withhold supplies of riflesand artillery guns
needed by the hlarathas. These facts are disclosed in the correspon-
dence between Vithal Rao Goraksh, the Portupiese envoy, and
Jose Caetano Pacheco Tavares, a Secretary to the Portuguese Gov-
ernment of Goa, contained in 'Agents of Portuguese Difilomacyin
India' by Pissurlencar. (Indian Annex E. No. II.)This correspon-
dence makes it clear that whatever ad hoc grants and concessions
were obtained by the Portuguese exempting them from arrears of
Zakat or permitting the passage of produce of Nagar Aveli without
'harassment' by Maratha Tax-collectors, were not obtained on the
basis of a legal claim discussed ai high levels of the Maratha Gov-
ernment. These ad hoc grants and conditions were obtained from
minor Maratha officialsas a result obribeor intimidation."
The above statement of the Government of India is dearly
supported by many other letters of the Governor of Daman addres-

sed to Goraksh, the Portuguese envoy, published in the above-
mentioned book of Pissurlencar, some of which are reproduced at
Indian Annex F. No. 47. This publication, however, does not con-
tain the Portuguese envoy's answers to these letters. The answers of
the Portuguese envoy arein the archives of the Portuguese Govern-
ment, and the Government of India has every reason to believe that,
were these to be produced, they would show even more clearly the
means adopted by the Portuguese envoy to obtain the end desired
by the Portuguese Government.

262. Annéx No. 13 to the Portuguese Mernorial is stated to be a
Ietter from the Subedar of Bassein to certain Maratha officials.
Apart from the fact that thisdocument is available only in Portu-
guese translation, said to have been made by Anant Kamodi Wagh
and therefore highly suspect by the Government of India, even its
date conflicts with the document at Indian Annex C. No. 29. The
letter in Annex No. 13 from the Subedar of Bassein is said to be
dated the 17th May, 1798. However, the document at Indian
Annex C. No. 29, which purports to be a letter of instructions to
the Subedar of Bassein is dated the 19th June, 1798. It may be
asked, how did the Subedar of Bassein issue the alleged letter for
removal of the attachment two months before he himself received

a letter informing him that the attachment may be removed?
263. The letter at Indian Annex C, No. 29, however, is not a
Sanad from the Maratha Ruler but from one Amrit Rao, a Maratha
officia1 who was the recipient of gifts from the Portuguese envoy
(Indian Annex F. No. 47, Letter Nos. 113 and 118). Ifthis letter is
examined it becomes absolutely clear that it contains no "confirma-

tion of Portuguese sovereignty over Nagar Aveli", It reads: I4O REJOINDER OF INDIA (11 59)
"Vithal Rao Goraksh, the Firangee Vakil, represented to the
Sarsuba that Mahal of Pragana Nagar Aveli, inclusive of Zakat,
Mohtarfaand tax on cattle, hasbeenassigned to the Firangee from
the Sarsubal; that Iast year the Mamlatdar of Arjungad brought
attachment on the Mahal for realizing one year's amount of Saran-
jam 1"

This document shows quite clearly that even Amrit Rao, the
recipient of gifts, was weil aware of the fact that the grant to the
Portuguese was of a Mahal in Saranjarn from the Sarsuba l, i.e.
frorn territory within the jurisdiction of the Maratha Ruler.
264. The above incidents of the attachrnent of the Saranjam and
the posting of the Maratha military guard show clearly that

Pargana Nagar Aveli formed part of the dominions of the Maratha
Sarkar and was so considered by Maratha officials.
265. As stated above in paragraph 259,Portuguese indebtedness
to the Maratha Government on account of the arrears of Ramnagar
Zakat was the reason for another confiscation in 1798. In order to
obtain relaxation of this confiscation, the Portuguese envoy fur-
thered his efforts to obtain a Sanad for a release and this time he
corrupted a Maratha official by the name of Laxrnan Pant Chakra-
dev. (Indian Annex F. No. 47. Letter No. 117). It appears that the

Portuguese envoy obtained from the said Laxman Pant Chakradev
a letter purporting to be under the seal of the Maratha Ruler. The
alleged document is given at Annex 19 to the Portuguese Memorial.
The photocopy of that Annex contains what is stated to be a
"copy" of an alleged document in the Marathi language. The Govern-
ment of India has made a translation of this "copy" and it is given
at Indian Annex E. No. IO. This translation reads:-
"Pragana Nagar Aveli has been assigned to the Firangee of Goa
by the Sarkar as Saranjam near Daman. He carries food grains,
teak woodetc., from thereto Daman by water and by land. Though
such is thepractice in the past, it has been communicated to the
Huzur that you have started harassing hirn in respect of Zakat.
Hence thisletter is being addressed to you. Therefore the Firangee
ofGoa willcarry from the Pragana Nagar Avelito Daman by water
and by land food grains and teak wood. He should not be pressed
for Zakat."

As the Government of India pointed out in paragraph 109 of the
Counter-Mernorial, if at al1the above document could be said to be
an authentic document issued under the seai of the Maratha Ruler, it
would even then appear to be nothing but an ad hocpermit or pass
for exemption from "harassrnent in respect of Zakat." The existence
of çuch a document would clearly dernonstrate that the power and
discretion to allow or refuse passage of goods inside or through
Nagar Aveli as through other parts of Maratha territory, resided

Ouritalics. REJOINDER OF INDIA (II59) I4I

solely with the Maratha Government. These ad hoc permits or
passes issued by the Maratha Governrnent were calIed "dastaks",
and they usually contained the formula:-
"X wilIproceed unmolested onthe way and without any harasç-
ment on account of Zakat."

These dastaks were issued by the Maratha Government, in its
discretion, topilgrims, marriage parties, merchantç, officials, etc.
(Indian Annex F. No. 48).

266. The need for obtaining fresh permits for exemption from
"harassrnent on account of Zakat" was recognized by the Portu-
guese Government, as can be seen from the documents of 1802 at
Indian Annex F. No.47. LettersNo~.rq1&14z,andAnnex Nos.zoand
40to the Portuguese Reply.At paragraph xzo theportuguese Govern-
ment stated that the alleged Sanad of 11th January 1799 issued by
the Maratha ruler expressly put an end to the dispute regarding
Ramnagar Zakat and acknowledged that the right to collect
Ramnagar Zakat beIonged to the Portuguese. The very fact that
the Governor of Daman found it necessary to write to the Portu-
guese envoy at the Maratha Court to obtain fresh permits in 1802
in itself contradicts the Portuguese statement in paragraph119 of
the Reply-that the matter was settled in17gr and in paragraph ~zo
of the Reply that the matter was settled in 1799. In this connection
the Government of India would like to draw attention to Annex 40

to the Reply. The Portuguese Government has not printed the
portions of the letter of the Portuguese Viceroy which show that
even in 1807there were difficulties in the carriage of produce from
Nagar Aveli to Daman and that the Marathas exacted customs
duties on such produce. The Government of India has made a
translation of the full text in the photocopy of Annex 40 to the
Reply andgiven it atIndian Annex F. No. 49.
267. It emerges from the above facts that long after the grant to
the Portuguese of aSaranjam in 1783 and 1785 the Maratha Govern-

ment colIected a tax in Nagar Aveli; that on the failure of the
Portuguese Government to pay the tax due to the Maratha Go-
vernment, the Maratha Government confiscated the assignment of
revenues on several occasions; that the Maratha Government
attached the Saranjam for the purpose of collecting 'one year's
revenue from Nagar Aveli; that the attachment was subsequently
withdrawn and the Portuguese released from their obligation to pay
srrears of Zakat as a result of the activities of the Portuguese envoy
at the Maratha Court; that, in spite of his efforts, he was not able
to obtain a permanent concession to the Portuguese; that the
Maratha Government always treated the grant to the Portuguese
as assignment of revenues in Saranjam tenure; that the Maratha
Government never parted with its rights relating to Ramnagar
Zakat; that the exemption from Zakat on "Jame" of Nagar AveIi
II142 REJOINDER 0F.INDIA (II59)
waç given on an ad hocbasis and had to be expressly renewed from
tirne to time.

Petition of the people oj Dadra and Nagar Avel io the Maratha
S overeign

Resumption of the Saranjam in 1817

268. At paragraphs 103, 104, and 105 of its Counter-Mernorial
the Government of India stated that the precanous nature of
interest granted to the Portuguese and the fact that the Maratha
Ruler had no intention of parting with his sovereignty over Dadra
and Nagar Aveli is further borne out by two documents of the
Marathas at Indian Annex C. Nos. 30 and 31.

269. The document at Indian Annex C. No. 30 is a highly revea-
ling petition from the Zamindars (landholders) and Ryots (culti-
vators) of Pargana Nagar Aveli addressed to their sovereign the
Maratha Ruler. In this petition the subjects of the Maratha Ruler
prayed for the revocation of the assignment of the Saranjam to the
Portuguese. They prayed :

"..we approach the feet of theMaster and make Our represen-
tations in detaiLet the Master be kind enough to keep the Mahal
under his direct revenue administratio..."

There was no doubt in the mind of the Zamindars and Ryots of
Nagar Aveli that they were the subjects of the Maratha Ruler and
entitled to his protection against the unjust exactions of the
Saranjamdar.

270. The document at Indian Annex C. No. 31 is a resolution of
the Rlaratha Government. In five short ,sentences this resolution
gives a complete description of the nature of the grant made to the
Portuguese. Its clearness and brevity makes itworthwhile to reprci-
duce it here in full:
<'
The Vakil from the Firangee was always accredited to the Sar-
kar at Poona and services of the Sarkar were performed by the
Firangee of Goa. For this the Mahal of Nagar Aveli, TalukaBassein
has been granted by the Sarkar in Saranjam to the FirangeeofGoa.
Of late no services to the Sarkar are rendebyd the Firangee.And
resumed."l does not reside at Poona. Therefore the Mahal should be

This document illustrates the following points:

(1) The gant to the Portuguese consisted of a Saranjam of
the Mahal of Nagar Aveli.
(2) Nagar Aveli continued to be in the Maratha jurisdiction
of Prant or Taluka Bassein. REJOINDEROF INDIA (II59) I43
13) The condition of the grant was

(a) the performance of service by the Portuguese to
the Maratha Sarkar ;
(b) the existence of friendly relations signified by the
accreditation of the Portuguese Envoy or Vakil to the
Maratha Court.

(4)The Portuguese Government failed in performance of
these conditions.
(5) As a result, the Maratha Sarkar resumed the Mahal,
that is, terminated the grant.

271. The Portuguese Government has found it extremely diffi-
cult to explain away the clear implications of the above mentioned
documents. In a footnote to paragraph 123 of the Reply it states
that the petition of the Zamindars was "a manoeuvre which was

instigated by and for which was solely reçponsible one Lala Morirn,
a common law criminal". It appears from this statement of the
Portuguese Government that it has a number of documents in its
archives relevant to the petition and apparently knows the details
of the representations made by the people of Nagar Aveli to the
Maratha Sarkar.
272. The Portuguese Government find it even more difficult to

explain away the impIications of the Maratha resolution of 1817
which terminated the grant of Saranjam. The only comment of the
Portuguese Government at paragraph 123 of the Reply is:
"This seems to be a suggestion made upon the responsibility of
no one, made by somelowerlevelofficial, whichas in the case ofthe
document just analysed, contained no response from the Court of
the Peshwa. In any event, the fact thano démarche was attempted
toimplement the suggestioncontained in that document, showsthe
impossibilityon the partofthe Government of Punem to implernent
it byitself."

The above is a mere presumption of the Portuguese Government
arisingfrom a failure to understand the significance of the document.
The above document is an officialresolution of the Maratha Govern-
ment and its effect was to bring about the revocation of the grant
ipso facto. The resolution was made in 1817 a few months before
the Maratha Ruler was conquered by the British. From that point
of view the Maratha Ruler did not get the opportunity of removing
the Portuguese from their position as Saranjamdar. However, as
has been stated, from the forma1 point of view the assignment of
Saranjam stood cancelled l.

l As appears from the deciofthe Bombay High Court in the BarSavaizjam
Case (Indian Annex FNo. 36). it was never necessary for the Sovereign Grantor
to make the order of revocation in writing or in any other forma1 manner. A mere.
decision or resolutcould bring the grant to an end.I44 REJOINDER OF INDIA (II 59)

Usurpation of Maratha ~ighls
273. At paragraph 112 of the Counter-Mernorial The Government

of India pointed out that the Portuguese were present in Dadra
and Nagar Aveli in their capacity as Saranj amdars of the Marathas,
as assignees and collectors of revenue. If,s seems to be the conten-
tion of the Portuguese Government, they exercised in Dadra and
Nagar Aveli nghts other than those of an assignee of a Saranjam,
that exercise was in abuse of the good faith of the hlarathas and a
usurpation of rights properly belonging to the Maratha Govern-
ment. As the Government of India stated in paragraph 112 and
paragraphs 114 to ,Irg of the Counter-Mernorial, the Portuguese
continued in Dadra and Nagar Aveli as a result of m.srepresent-
ations to the British Government immediately after the extinction

of the Maratha State that under a "Treaty of 1780" the Marathas
had ceded Nagar Aveli to the Crown of Portugal. The alleged
"Treaty of 1780" was never produced to the British Government.
The British Government had no opportunity of verifying the state-
ment made by the Portuguese Government and the Portuguese
continued their presence in Dadra and Nagar Aveli. In consequence
it cannot be asserted by the Portuguese Government that they
acquired a valid titIe to cession of territory from the Maratha
Government. The Portuguese Government has entirely failed to
produce evidence of any such title having been received by them
from the Marathas. In fact, in paragraph 124 and the following of

the Reply the Portuguese Government relies not on a valid title
r' cession of sovereignty received from the Marathas, but on
effective exercise of sovereign powers", "fiscal power", "adminis-
trative government", "maintenance of public order and military
powers", "repression of crime and the administration of justice".
In short, these high-sounding phrases are meant to convey that
although Portugal received no title to cession of territory in sover-
eignty over Maratha territory either under the alleged treaty of
1779, or the alleged accords of 1783 or 1785, she did in fact act as
if she were sovereign over Dadra and Nagar Aveli. As the Govern-
ment of India has aIready submitted, no such pretence to sovereign

powers on the part of the Portuguese Government could in the
absence of a clear cession of territory operate to divest the Marathas
of their sovereignty over their territory. No acts of alleged "ad-
ministration" et cetera could serve to bring about cession ofaratha
territory to Portugal.

274. In point of fact, however, the very documents'produced by
the Portuguese Government contradict its assertions that the Portu-
guese "exercised sovereignty" over Nagar Aveli or that the Mara-
thas acquiesced in such a situation. Thus in paragraph 123 the
Portuguese Governrnent admits that the Portuguese respected the
institution of "Patels". The very fact that the Governor of Daman REJOINDER OF INDIA (II 59)
I45
had doubts about his powers in deaIing with the Patels and his
reference to the Portuguese Viceroy shows that there was a great
deal of doubt in the mind of the Portuguese as to their rights in

Pargana Nagar Aveli. In paragraph 126 and 127 of the Reply the
Portuguese Government States that in 1814 Maratha troops entered
Nagar Aveli for the purpose of catching thieves. The Portuguese
Government referred to a Ietter from the Governor of Daman to
the Portuguese Viceroy dated the 28th November 1814 in which
letter he reported the matter and asked for instructions. This letter
shows again quite clearly that the Marathas looked upon Pargana

Nagar Aveli as territory within their sovereign jurisdiction and
sent armed forces there without asking the leave of the Portuguese
and that they considered it their right to cal1 on the Portuguese
Saranjamdar to help in the catching of thieves on $ais of the
revocation of the grant. The letter reveals the doubt in the mind of
the Governor of Daman as to the right of the Portuguese in the

matter l.

275.It is also clear from the document of Annexes No. 43 and 44
to the Reply that the Maratha resolution to revoke the grant and
terminate altogether the rights of the Portuguese in Nagar Aveli
had its origins in a letter addressed to the Portuguese by the Sube-
dar of Bassein and by the Maratha Ruler. Thesc Annexes give
clear indication of the existence of these two documents. The

Portuguese Government, however, has failed to produce these two
documents. These documents, be it noticed, are stated by the
Portuguese to be "fabricated". If letters from the Maratha Govern-
ment were capable of being "fabricated" what guarantee is there
that the so-called orders, permits and sanads relied upon by the
Portuguese Government were also not fabricated at the instance
of the Portuguese envoy at the Poona Court 2.

276. The Government of India accordingly submits that the evi-
dence in the file shows that the Marathas never doubted their

sovereignty over their Pargana of Nagar Aveli in the jurisdiction
of Prant or Taluka Bassein, that never did the Portuguese make any
assertions of claim to sqvereignty over Pargana Nagar Aveli; that
the Marathas showed by their intentions and conduct that they
would not have acquiesced in assertions of Portuguese sovereignty
over Pargana Nagar Aveli; that the Portuguese never exercised

l The Portuguese Government printed onlyashort extract from the document.
Jt totallysuppressedthe portion of the letter in which the Governor of Daman
txplainedthe attitudeaken up by the Maratha authorities and the warning given
to him that if he did not comply with Maratha orders the grant would l-ierevoked.
of the photocopy of Annex42sto the Reply.ndian AnnexNo. 50, a full translation
The Portuguese Governmenthasomitted relevantparts in the printed Annexes.
A full translatiofFortuguese Reply Annexes 43 and44 willbe found atIndian
hnnex F.Nos. 51and 52 respectively.14~ REJOINDER OF INDIA (II 59)

any rights in the Pargana Nagar Aveli exceeding the limited,
revocable and terminable rights enjoyed by a Saranjamdar. The
Government of India also submits that any usurpation of the
rights properly belonging to the Maratha Government or defiance
of bfaratha authority on the part of the Portuguese could not have
affected the sovereign rights of the hlaratha Government nor
changed the nature of the grant from an asçignrnent of revenuesin
saranjam tenure to cession of territory in full sovereignty. REJOINDER OP INDIA (11 59) I47 .

THE BRITISH PERIOD

277. The discussion in the Reply of the British period, i.e. the
penod from 1818 to 1947 , pens with six introductory paragraphs
(paragraphs 129-134I) n.these paragraphs the claim is made that

throughout the whole of this period the British both recognized !
Portuguese sovereignty over Daman andthe enclaves and respected
the Portuguese right of access to the enclaves (paragraph 130).
It is also claimed that during this period passage of persons, both
oficials and private individuals, and of goods went on in such a 9
way as to maintain completely "the desired liaisons" between
Daman and the enclaves (paragraph 132).
1
278. It is convenient to state at once the answer of the Govern-
ment of India to these claims. There is no doubt that throughout
the British period traffic passed between Daman and the enclaves. :
This traffic included both persons and goods, and among the per-
sons were a certain number of armed soldiers and police as well as
private individuals. The mere fact that this passage took place, is,
however, of no legal significance. Inferences favourable to the
Portuguese case could be drawn from this fact only if it were shewn 1
that the British authorities allowed this passage because they 1

conceived themselves to be obliged to do so.If, on the other hand, .?
th~y allowed it merely as a matter of good neighbourliness, and
only so far as it was not prejudicial to British interests, the fact i
that the passage took place is entirely irrelevant to the question ;
whether a right of passage existed; The history of the British
period shows, in the submission of the Government of India, that
transit both of persons and of goods between Daman and the
enclaves was always subject to controI and regulation by the *
British authorities. This much even the Portuguese Government
is constrained to admit. On certain occasions, when British inter-

ests so demanded, transit of certain kinds was entirely forbidden ; '
agreements were made and language was used arnounting to an
acknowledgement on both sides that transit, while in practice
perniitted, could not be demanded as of right. Transit of persons :
and goods took place, according to the Reply (paragraph 132) ;
(in such a aay as to completely fulfil itpurpose, i.e. themainte-
nance of the desired liaisonsbetween these territories(i.e. Daman
and the enclaves)".

If, and in so far as, this is true, the reason for it is nc)tthat some
right existed, but that the "purpose" of the Portuguese Govern- ,
ment was during this period unobjectionable to the British Govern- '
ment, and the "liaisons" in question were not only "desired" by
;148 REJOINDER OF INDIA (11 59)
the Portuguese but also consistent with British interests and
policy. The history of the period provides no evidence that, in
allowing access to the enclaves, the British authorities were recogniz-
ing or respecting any Portuguese right.

279. The Portuguese Government cornplains of "frequent inaccu-
racies" in the Indian Government's presentation and interpretation
of the facts (paragraph 133). The Indian Government is not con-
scious of having comrnitted such inaccuracies. As the Portuguese
Government condescends to no particulars, such as would enable
the Indian Government to deal with the alleged inaccuracies, the
Indian Government concludes that this charge is not regarded very
seriously even by those who make it.

280. Paragraphs 135 to 145 of the Reply consist of an alleged
exposure of "sorne basic defects of the Indian argument". The

following are the "defects" of which complaint is made:-
(i) The Indian Governrnent, it is said, has been at great pains to
prove that which the Portuguese Government admits, viz. that
transit between Daman andthe enclaves did not have the advantage
of immunities; but this, according to the Portuguese Government,
shows only that the right of passage was regulated, and the
conditions for its exercise were laid down, by the British authori-
ties, and has nothing to do with the existence of the right of pas-
sage itself.
(ii) The Indian Governrnent is accused of confusing passage for
the purpose of reaching the enclaves with entry into neighbouring

terntory, and relations in general between Portuguese territory in
India and neighbouring territories with the allegedly special case of
the enclaves. For an example of this error, the Portuguese Govern-
ment refers to the Indian Government's reliance upon the Treaty
of 1878, and contends that that Treaty, while it established a
system applicable generally between British and Portuguese terri-
tories in India, had nothing to do with the particular case of transit
between Daman andthe enclaves.
281.With regard to the first of these complaints, it iç not merely
for the purpose of proving that traffic between Daman and the
enclaves did not enjoy any immunity that the Government of
India has invited the Court to study the British period in some
detail. The Portuguese Government tries to draw a distinction

between a right ofpassage and a right to imrnunities,between a right
to regulate and control and a right to forbid and prevent. It is the
submission of the Government of India that these distinctions have
no legaI basis. The Portuguese cannot have had a right of passage
unless they also had a right to irnmunities, for without immunities
a right of passage would have been meaningless. If the British had REJOINDER OF INDIA (II59)
the right to regulate and control the passage, they must also have

had the right to forbid and prevent it, for without the latter the
regulation and control would have been ineffective. The events of
the British period, showing that the Portuguese enjoyed no immun-
ity and the British constantly exercised the right of regulating and
controlling traffic between Damanand the enclaves, are therefore of
great significance. If Portugal hadno ~ight of immunity, that indi-
cates that she had no right of passage. If there was power to regulate
and control, that indicates that there was power .to forbid and
prevent. It is for this reason that the events of the British period
set out in the Counter-Mernorial, so far from being (in the words of
the Reply, paragraph 136) "entirely outside the scope of this dis-
cussion", are of vital importance for the determination of the
matters in issue.

282. Relying upon this first criticism of the Indian argument, the

Government of Portugal, referring to the account in the Counter-
Mernorial of transit between Daman and the enclaves during the
British period, professes to find it "unnecessary for us to follow
this statement pari passa'' (paragraph 137) . he Indian Govern-
ment submits that this account of the actual practice in regard to
transit during the British period is far more seriouin its effect on
the Portuguese claims than the Portuguese Government seems to
have appreciated. Apart from the general effect of the story, how-
ever,it is also important to study the particular language of the
individual documents. Such a çtudy reveals that the representations
made by the Portuguese authorities from time to time and the
terms in which they made them give no hint of any belief in a right
which they were in a position to enforce; and the attitude of the
British authoritieç shews them always assuming that transit

between Daman and the enclaves was something which they were
entitIed to allow, to forbid or to control as British interestsreguired;
cf. Counter-Mernorial, paragraphs 114, 127, 131,136,152. 163, 178,
and rgo-191.

283. In putting forward the second complaint (Reply, paragraph
'$4, the Portuguese Government draws a distinction between entry
into neighbouring tei-ritory and passage to the enclaves. The argu-
ment overlooks the fact that, while these two things may not be the
same, the latter involves the former. Passage from Daman to the
enclaves, or vice versa, is not possible without entry into the inter-
vening territory. To forbid al1entry into that intervening territory
would be to forbid such passage. Any regulation controlling entry
of Portuguese troops into British (or Indian) territory gcnerally,
or any agreement that Portuguese troops should not enter British

(or Indian) territory in general 'without permission, would neces-
sarily apply, in the absence of a specific exception, to passage
betweeri Daman and the enclaves. Documents dealing, with entry150 REJOINDER OF INDIA (1159)
into neighbouring territory, therefore, so far frorn dealing with

a question outside the present dispute (Reply,paragraph r39),are
directly relevant to matters in issue.
284. According to the Government of Portugal, it is "quite
obvious" that an argument tvhich proceeds by inference frorn the
general relationship between Portuguese territories in India and
adjoining territones to the case in hand is defective (Reply, para-
graph 139). So to contend, however, is to, beg the question. The
Portuguese Government assumes that relations between what it
calls "the different parts of the district of Daman," and the sur-

rounding territories constitute a special case, to be distinguished
from relations between other Portuguese possessions and the terri-
tory surrounding them. This is to assume a large part of what the
Portuguese Government-the clairnant in these proceedings-has
tu prove. A document dealing wifh entry from Portuguese territory
in India into adjoining territory applies PrimaJacie to entry from
Daman (and, before 1954 ,ntry from either of the enclaves) into
adjoining territory. If such a document contains no specific excep-
tion, it could be held inapplicable to Daman and the enclaves only
if that results from some general principle of law, or there exists
some treaty or custom applying to the territory between the
enclaves but not to the territory surrounding other Portuguese
possessions. Whether such a general principle, treaty or custorns has
ever existed is, however, precisely the point in issue in the litigation.
That passage through the territory between Daman and the encla-
ves constitutes a special case, not merely geographically but also
legally,is something to be proved, not something which the Portu-

guese Government is free to assume.
285. As a particular example of this "defect of reasoning" the
Government of Portugal refers to the Treaty of 1878. We are told
in the Reply (paragraph 140) that this Treaty "covers questions
which are irrelevant to the subject matter of this action", anditis
for that reason that nothing was said of it in the Memonal; the
Treaty established general rules applicable to the Indian territories
of the contracting parties, but in the particular case of passage
between Daman and the enclaves did not affect Portugal's pre-

existing'right (paragraph 141). When the Treaty itself and the
practice under it are examined, it is seen that the Treaty deals
throughout with al1 British and Portuguese territories in India in
general terms, making no attempt at any point to distinguish one
territory from the others. From this point ofview, the phraseology
of Article VII, which is admitted by the Government of Portugal
to have applied to the enclaves, is indistinguishable from that of
Article XVIII, which, according to the Government of Portugal,
did not apply to them. IVhile the Treaty was actually in force,
moreover, the Governor-General of Portuguese India hiinself admit-
ted that the provision regulating the entry of the armed forces of REJOINDER OF INDIA (II59) 151
one party into the territory of the other applied quite generally,
without any exception affecting Daman and the enclaves: cf.
paragraphs 288-296 below. In the submission of the Government of

India, it is perfectly clear that from 1879 to 1892 Daman and the
enclaves were subject to the terms of the Treaty in exactly the
same way as the other Portuguese possessions in India. When bhe
terms of the Treaty are borne in mind, this throm much light on
the question of what rights the Portuguese authorities, imrnediately
before it came into force, believed themselves to possess.
286. The principal purpose of theTreaty (Indian Annex C. No. 40)
was the establishment of a customs union between al1British and
Portuguese territones in India. Freedom of transit was established
by Article 1. This article, which undoubtedly related to all the
lndian territories of either party, referred to

"the Indian dominions of the High Contracting Parties",

The following are the expressions used in other articles of the
Treaty :
II. "The subjects of each of the High Contracting Parties shav
be entitled to enter into and to travel and reside in the
Indian dominions of the other."
III. "The ports, harbours, roadsteads, basins, creeks and rivers
in the Indian dominions oj each of the High Contracting
Parties shall beopen..."
V. (Agreement of the High Contracting Parties relating to)
"the development of commercial relations between their
respectivedominions".
VII. "...the desire of the High Contracting Parties that tkeir
respectiveIfidian dominions shall become one territory in
al1matters relating to commerce ..."
"A11customs duties ...now levied on the frontier lines
between theIndian dominionsoftheHigh ContractingParties
shall be abolished.."
"Al1 articles of commerce of whatever origin, which
according to the provisions of this Treaty, may be imported
into or exported from the Indian dominions of eitherParty
shall pass freely into or outof such dominions across SUC~
frontier line..."
VIII. "...the complete freedom of intercourse between their
respectivelndian dominions. .."
X. "Such registers and accounts of traffic shall be kept ...
upon any railway which may now or hereafter serve to
connect their respectiveIndian dominions ..."
XI. "The High Contracting Parties reserve to themselves res-
pectively the right to maintain, modify ..al1 interna1
duties of excise...existing in their lndian dominions..."
XVIII. "The High Contracting Parties mutually agree to adopt in
Aeir respectiveterritoriessuitable measures forthe prevent-
ion and punishment of smuggling.. ." -152 REJOIXDER OF INDIA (II59)
"The revenue, magisterial and police authorities of the
Indian domifiions of the High CorztractingParties shall
cordially CO-operatewith each other.."
"The armed forces of one of the two High Contracting
Parties shall not enterheIndian dominionsof th: oth..."
"The exportation of arms, ammunition ormilitary stores
from the Indian dominions of one of the High Contvacting
Parties into thoseotheother shaIlnot be permitted..."
XIX. "The High Contracting Parties engage to deliver up to each
other those persons who, being accused or convicted of
crimes committed in the Indian dominions or jurisdiction
' of the oneparty, shall be found in the Iadian dominions or
jurisdictionO/theotherpa~ty."

287. From these quotstions it is clear that the same expressions
were used throughout the Treaty to describe the territories to
which it applied. The intention of the parties in using these expres-
sions in most of the articles is beyond dispute; they intended to
refer toal1the Tndian dominions of either party without exception.
The Government of Portugal expressly admits (Reply, paragraph
143) that the customs immunity created by article VI1 of the
Treaty "on the frontier lines between the Indian dominions of the
High Contracting Parties". applied to goods in transit between
Daman and the enclaves. Yet that Government contends that

Article XVIII of the Treaty, forbidding, Save with permission,
the entry of the armed forces of one party into "the Indian domin-
ions of the other" and the exportation of arms, etc., from "the Indian
dominions" of oneparty "into those of the other", had no application
to transit between Daman and the enclaves (Reply, paragraphs 141
and 144). The Governmcnt of India submits that the'fgeneral
language of Article XVIII cannot bear any such restricted inter-
pretation. When Article XVIII is read in the context of the rest
of the Treaty, itis impossible to believe that the parties, if they ha.
intended such an exception as the Portuguese Government seeks
to read into the article, would not have inserted the exception in
express terms.

288.In support of the contention that Article XVIII didnot apply
to transit between Daman and the enclaves, the Portuguese Govern-
ment alleges that" the facts prove that "passage of police and armed
forces between Daman and the encIaves" took place even 'during
the period when the Treaty of 1878 was in force, under conditions
which were different frorn those laid down in its Article 18" (Keply,
paragraph 144) R.eference is then made to 23 cases, between 1880
and 1889, of soldiers passing between Daman and the enclaves or

between the enclaves. The documents produced relating to these
cases (Reply, annexes Nos. 50-76) are al1communications from one
Portuguese officia1 to another. Even on its face, therefore, this
evidence does very little to shew what interpretation was placed
upon the Treaty. The documents contain nothing to suggest that REJOINDER OF INDIA (1159)
I.53
the British authorities knew of these incidents, or acquiesced in
the entry of the soldiers into British territory without the forma1
request required by Article XVIII. These documents are perfectly
consistent with the view that the 23 incidents took place not in
accordance with the Treaty, but in spite of it, and this view is
confirmed by evidence emanating from the Governor-General of
Portuguese India himself.

289. This evidence is contained in correspondence about Article
XVIII of the Treaty, which passed between the Government of
Bombay andthe Government of Portuguese India in 1890and 1891.
On the 29th May, 1890 ,he Secretary General to the Government
of Portuguese India sent a telegram to the Government of Bombay,
reporting that 15 sepoys of the Ratnagiri police had landed armed
at Marmagao, and had been disarmed "for want of previous license"
(Indian Annex Ti N.o. 53).These policemen had in fact been pass-
ing through Marmagao in transit, on their way from Ratnagiri
to Belgaum. At the request of the British Consul at Goa, the

Portuguese authorities alowed them to proceed on their way with-
out arms. As a result of this incident, the Government of Bombay
passed a resolution,No. 4138, of the 2nd July, 1890,in the following
terms (Indian Annex F. No. 53):
"Under Article XVIII of the Treaty ofCommerceand Extradition
between Great Rritain and Portugal, ratified on the 6th of August
1879, it is provided that the arrned forces of one of the two high
contracting parties shall not enter the Indian dominionsofthe other,
except for the purposes specified in former or in that treaty, or
except in consequence of a forma1 request made by the party
desiringsuch entry to the other. When, therefore the Superintendent
of Police, Ratnagiri, desired to despatca party of armed Police
to Marmagao for transit to Belgaum, he ought to have moved Gov-
ernment in this Department to prefera formal request to the Gov-
ernor General of Portuguese India and awaited the result.
2. The Resolution No. 107, dated gth January 1880, quoted by
the Vice-Consuldeals with other clauseofArticle XVIII in respect
of the exportation and importation of arms and ammunition, and
is not reIevant to the present case. The Commissionersof Divisions,
and the Inspector General of Police should have their attention
at the accidental omission to cornply witbhtheestipulationofnthet
treaty should be expressed to the authorities at Goa."

A letter expressing çuch regret was sent to the Secretary General
to the Government of Portuguese India on the 2nd July, 1890, and
a copy of this letter was sent to the British Vice-Consul at Goa
(Indian Annex F. No. 53), with the intimation that in such cases

"a report should be made to Govt. by telegraph and a forma1
request will then be sent by telegram, a course which is commonly
adopted by the Port. authorities when sending prisoners or reliefs
to DamanJ'. REJOINDER OF INDIA (II 59)
I54
290. Thisincident shews that there was no laxity about the inter-
pretation of Article XVIII. Neither the British nor the Portuguese
authorities felt any doubt that itapplied even to small bodies of
British soldiers or police passing arrned through Portuguese terri-
tory in transit only from one part of British'dominions to another.
It appears from the Government of Bombay's note of the 2nd July,
1890, to the British Vice-Consul at Goa (Indian Annex F. 53))
with its reference to the "course which is commonly adopted

by the Port. authorities when sending prisoners or reliefs to Daman",
that the Portuguese authorities also recognized that the Treaty
obliged them to get permission before sending armed men through
British territory to Daman. Itmight be suggested that such per-
mission was asked only when the men were to travel to Daman by
land from Goa or from Diu (in which case the journey could be
made by sea, so that passage across British territory was of choice
andnot of necessity), not when they were coming from the enclaves ;
but what foilowed shews that this was not the fact.

291. On the zznd September, 1890, the District Magistrate at'
Surat wrote to the Commissioner of the Northern District (Indian
Annex F. No. 53),referring to Government Resolution No. 4138
(quoted above) and reporting
"that armed men in the service of the~ortuguese Government
pas through aportion of Pardi Taluka (British territory) on their
way from Damaun to Nagar Haveli and back (both in Portuguese
temtory) and the practice does notseem authorized by ariyof the
ways mentioned in the 3rdparagraph of Article XVIII".

The Cornmissioner reported the matter to the Government of
Bombay. On the 8th December, 1890, a letter was written to the
Secretary-General to the Government of Portuguese India, referring
to the report and going on (Indian Annex F. No. 53):

"It wouldappearthatthe provisionsofArticleXVIII ofthe Treaty
are thus violated: and since this Government has learnt from your
letter No. 64 of the 30tof May,1890[a letter about the incident
of the Ratnagiri policeat Marmagao]of the importance which your
Govemment justly attaches to an observance of the Treaty, 1 am
to request that the Governor General may be movedto issue orders
on the subject.."
In reply to this letter, the Governor-General of Portuguese India

wrote to the Governor of Bombay on the zznd December, 1890
(Indian Annex F. No. 53), thus:
"...On so delicate a subject, 1 request leave to observe that
Portuguese troops never cross British territory without previouç
permission, and that smali detachments, whenever on the march,
meet a military post or any force or British authority, they halt
and only proceed further after applying for and obtaining fresh.
permission. REJOINDER OF INDIA (II 59) l55

For centuries has this practice been followed,wherebythe treaties
have beenrespected and due deferenceshownta the British Author-
ities.. ..
I hope Your ExceIlencywillallowthe continuance of the practice
Portuguese troopç across British territory. Should Yourxcellenc ,f
however, not allow this, 1 shaUorder that any detachments shou rd
go iinarrned; and with regard to British detachments, 1shd main-
tain the arrangements above referred to, of permitting their free
transit through Portuguese territory, whenever notice of their
passage ha been previously given to the militaq authorities
subordinate to me."

292. The Governor-Generd of Portuguese India wrote this Ietter
in answer to a specific compIaint that passage of Portuguese troops
between Daman and Nagg Aveli without the permission of the
British authorities constituted an infraction of Article XVIII of the
Treaty. He did not contend that passage of Portuguese troops over
the British territory befween Daman and the enclaves fell outside
the operation of the Treaty, nor did he daim for his Government
any right of passage over this territory. On the contrary, his letter
consisted in effect of:
(i) an acknowledgement that Portuguese armed forces could not
be sent over any British territory, including that lying

between Daman and the enclaves, without the previous per-
mission of the British authorities ; ..
(ii) a claim that Portuguese troops never did cross any British
territory without previous permission, and had not done so
for centuries;
(iii)a statement that, if the Governor of Bombay objected to the
passage of armed Portuguese troops, they would be sent
unarmed.

Not only does this letter contain no daim of a right of passage to
the enclaves across British temtory; it is, in the submission of the
Government of India, inconsistentwith the existence ofanysuchright.

293. The char terms of this letter, written directly on the subject
of the application of Article XVIII of the Treaty to passage between
Daman and the enclaves, would in any case outweigh any inference
which might be drawn from the 23 incidents upon which the Portu-
guese Government relies. However, there is more than this to be
said. The letter was written in 1890, i.e. after al123 incidents, the
last of which occurred in1889. In it the Governor-General stated that
"Portuguese troops never cross Bntish territory without previous
permission".

If, therefore, on the 23 occasions mentioned in paragraph I# of the
Reply, Portuguese armed forces had crossed British temtory with-
out permission, these incidents must have been concealed from the156 - REJOINDER OF INDIA (II59)

Governor-General by his subordinates; for it iç not to be supposed
that the Governor-General was deliberately telling an untruth to the
Governor of Bombay. The obvious reason for this concealment
would be that the Portuguese authorities knew that in these 23
incidents theyhad acted in breach of the Treaty. Moreover, if these
incidents were conceaied from the Governor-General of Portuguese
India, it is very probable that the Portuguese authorities in Daman
did everything possible to prevent them from becoming known to
the Government of Bombay. If the Government of Bombay (as

distinct from minor local officials of that Governrnent) never knew
of them, the 23 incidents haveno value as indications of the partiesJ
common interpretation of the Treaty. On the other hand, as soon
as the District Magistrate atSurat's letter of the aznd September
1890 (Indian Annex F, No. 53) reached the Government of Bombay,
cornplaint was made to the Government of Portuguese India that
the Treaty was being broken.
294. On receiptof the letter of the eznd December, 1890from the
Governor-General of Portuguese India, the Government of Bombay
caused inquines to be made. On the 28th February, 1891, the
District PoliceInspector of the Bulsar Division subrnitted a report
(Indian Annex F. No. 53), showing that on a number of occa-
sions Portuguese armed men had passed through British territory

without permission. He added that British police sornetimes went
armed into Portuguese territory, and were not subjected to any
interference. The District Superintendent of Police recommended
that this state of affairs be allowed to continue. The Districtgi-
strate at Surat and the Commissioner of the Northern District
concurred in the view that the reciprocal understanding should be
inaintained (Indian Annex F. No. 53).
295. Accordingly, in answer to the Governor-General's letter of
the zznd December, 1890, the Secretary to the Government of
Bombay wrote to the Secretary General to the Government of
Portuguese India on the 9th April,1891. (Indian Annex F. No. 53.)
He said investigation had revealed several cases in which Por-
tuguese armed men had apparently passed through British terri-

tory without any application for permission, in spite of "the rule,
which requires due notice of transit and application for permission
to pass" ;but, since they seemed to have behaved themselves with
perfect propriety, the Governor of Bombay had given orders that
there should not ordinarily be any interference with them. The
Secretary-General, however, in his answer of the 7th May; 1891
(Indian Annex F. No. 53,) wrote that
"on the part of this Government injunctions will given forthe
strictest observance of the provisions of Article XVIII of the
Anglo-PortugueseTreaty".
296. From the whole of this correspondence, it appears that there

was no disagreement between the British and the Portuguese REJOINDER OF INDIA (II59) I57

authorities about the effect of Article XVIII of the Treaty. Both
sides understood that that article, .being general in its application,
applied to Portuguese armed men entering British territory for the
purpose of transit between Daman and the enclaves. The Govern-
ment of Bombay was prepared to acquiesce in the passage of small
numbers of men without insisting on an application for permission
on every occasion ;but this was put forward as a concession, not as
sornething to which the Portuguese Government was entitled under
the Treaty, and it was suggested because a reciprocal concession on

the part of the Portuguese was convenient to the British authori-
ties. (Whether the concession was accepted is, however, uncertain,
for the Secretary-General's letter of the 7th May, 1891 (Indian
Annex F. No: 531, suggests that the Portuguese Government
preferred strict application of the Treaty.)The submission of the
Governmen t of Portugal [Reply, paragraph 14) that during the
period of theTreaty passage of armed men between Daman and the
enclaves was not governed by its provisions is thus seen to be
unfounded.
297. The Treaty also throws interesting light on the question

whether before it came into operation the Portuguese possessed any
right of transit between Daman and the enclaves. In his Ietter of
the 22nd Decernber, 1890 quoted above (Indian Annex F. No. 53),
the Governor-General of Portuguese India, having stated that
"Portuguese troops never cross British territory without previous
permission", sdded that "for centuries has this practice been
followed". If the Portuguese possessed a right of passage over
British territory between Daman and the enclaves before 1879, it
is impossible to understand why they should "for centuries" have
asked permission (not merely given notice) whenever their troops
wished to cross this territory. This, however, is not all. The course
of the negotiations leading to the conclusion of the Treaty lends
strongsupport tothe view thatthe Portuguese Government did not
believe itself to possess any such right of passage. It was the Portu-

guese Government, not the British Government, which pressed for
the inclusion in the Treaty of that part of ArticleVIII which dealt
with entry of the armed forces of one party into the territory of the
other. The Portuguese Government pressed for the prohibition,
unlimited geographically, just as iteventually appeared in the
Treaty. This part of the negotiations is described in despatches of
the 8th and 17th December, 1876, from the British Minister in
Lisbon (Mr. Morier) to the Secretary of State for Foreign Affairs in
London (Indian Annex F. No. 54).In the firsf of these despatches,
Mr. Morier stated that the Portuguese Government attached the
greatest importance to "a renewal of the guarantee of the Portu-
guese possessions in India by Great Britain". Senhor Corvo had
explained that the proposed treaty would excite opposition in
Portugal and be sttacked as a betrayal of Portuguese interests, but

a clause such as he proposed would "enable him to repel these
1215~ REJOINDER OF INDIA (II59)

attacks". In the second despatch, Mr. hlorier stated that Senhor
Soares,'with the approval of Senhor Corvo, had proposed the inclu-
sion, in the article dealing with extradition,ofthese words:

"La force publique se prêtera mutuellementaide des deux côtés
pour réprimerla contrebande, poursuivre lesbrigands;mais la force
armée d'unpays ne pourra pas entrer dans l'autre sans qu'elle soit
dûment réclaméepar l'autoritécompétente pourles buts spécifiés
dansce Traitéou dans les Traitésantérieurset notamment dans le
Traitéde 1661."
Senhor Soares had added that one purpose of this provision would
be to shew

"that the removal of the customs frontier would not imply the
disappearance of the frontier itself, or the promiscuous accessto
Portuguese territory of British functionaries, as the presenceof the
armedforceof eachcontractiagparty on the territoryof the0twould
in eachcaserepuirethe $reviousconsentof the competentauthority"l
298, Thus, in 1876 the Portuguese Government was anxious to

have inserted in the Treaty a provision that the armed forces of
one party should in no case enter the territory of the other without
previous permission. Had they then possessed a right to enter with
their armed forces a certain part of British territory, viz. the part
between Daman and the enclaves, this proposal would have
amounted to a suggestion by them of voluntary abandonment of
this right. It is inconceivable that the Portuguese Governrnent can
have intended any such abandonment. The whole purpose of the
provision was to assure the Portuguese public that Portuguese
interests were not being sacrificed. Such an abandonment would
have defeated that purpose entirely. (Portuguese sensitiveness on .
this point may explain why in 1891, as set out in paragraph 295

above, the Portuguese Government preferred a strict application
of the Treaty to a reciprocal arrangement, which would have
involved them in formally permitting armed British police to enter
their territory without previous permission.) The conclusion is
clear, that i1876 the PortugueseGovernment did not suppose them-
selves to possess any nght of passage over British territory inIndia.

II: BRITISH ATTITUDE TO RIGHTS PREYIOUSLY ACQUIRED BY

PORTUGAL
299. In paragraph 146 of the Reply, the Government of Portugal

refers to the submission of the Government of India thatthe British,
when they began to exercise sovereignty over the temtory sur-
rounding Daman, refused to recognize any rights granted to the
Portuguese by the Marathas. The Government of Portugal draws
attention in that paragraph to the various ways in which this SU^-

Italics added. REJOINDER OF INDIA (II59).
I.59
mission has been put at different places in the Indian pleadings. The
Government of India ventures to suggest that its position is in fact
clear enough. The submission is that the British Government never
recognized thatthe Portuguese were entitled as against them to any
rights, or that they were themselves subject to any obligations,
arising from alleged treaties, decrees or grants made between the
Portuguese and the Marathas. This submission is naturally made
with reference to the subject matter of the present proceedings. It,

therefore, refers primarily to rights (if any there were) affecting
territory which in 1818 became British. As to the enclaves them-
selves, the question whether the British recognized the right granted
by the Marathas to the Portuguese does not arise. That right was a
rnere' right to coliect revenue (cf. Maratha Period facts). The
British appear not to have known of any such limited right over
the enclaves in 1818, so they cannot have recognized it. Equally,
they cannot have "recognized" any grant of sovereignty by the
Marathas to the Portuguese, since there had never in fact been any
such grant.

300. It is convenient to consider here the groundsupon which the
Portuguese Government contend that Portuguese sovereignty over
the enclaves was recognized by the British in 18x8. This point is
discussed in paragraphs 158-164 of the Reply. Attention is drawn
in paragraphs 158 and 159 to an alleged difference between Sir
Frank Soskice's submissions at the oral hearing of the preliminary
objection and the submission set out in paragraphs 320-323 of the
Counter-Memorial. In seeking to take advantage of this alleged

difference the Portuguese Government, in the submission of the
Government of India, is making a quite wrong approach. Portugal
is the plaintiff inese proceedings, and she clairnsrelief to which she
cannot be entitled except by virtue of sovereignty over the enclaves.
It is for the Portuguese Government. therefore, to establish the
origin of this alleged sovereignty. If they fail to do so, it does not
avail them to point out diversities, or even inconsistencies, between
different parts of the Indian case. The Government of Portugal in
fact rely for the origin of Portuguese sovereignty over the enclaves
solely on the alleged treaty of Punem of 1779 It has been dem-
onstrated that the Marathas did not confer sovereignty over
any of their territory upon the Portuguese, but only certain limited
rights. The Portuguese Government ,therefore, have failed to give
any satisfactory account of the origin of Portuguese sovereignty,
which is the foundation of their case. In these circumstances. it is
hardly surpiising if the Indian ~overnment have some difiîculty in
finding an explanation of the Portuguese claims. No criticism of the
Indian suggestion will make good the lack of proof by the Portu-
guese Governrnent of 'the origin of the alieged sovereignty, upon

which their claim of a right of passage is based. 160 REJOINDER OF INDIA (II59)

301. In paragraph 160 of the Reply, the Government of Portugal
content themselves with the bare assertion that Portugal obtained
full sovereignty over theencIaves by the alleged treaty of 1779. The
arguments in support of the Indian contention that the alleged
treaty created no such right have already been given above,
and need not be repeated. It may be added that, there being no
transfer of sovereignty by a treaty, Portugal could not have

acquired sovereignty by long occupation by 1818, since, as the
Portuguese Government themselves emphasize in paragraph 162
of the Reply, the Portuguese in 1818 had been in Nagar Aveli only
for about thirty years.
302. The Portuguese Government contend that no doubt has
ever been cast on Portuguese sovereignty over the enclaves. The
Indian submissions in this case provide, they Say, the first instance
of a denial that there existed a treaty, or that the alleged treaty

wlas the origin of Portuguese sovereignty over Dadra and Nagar
Aveli. The answer to this is that the denial has been made for the
first time, because these proceedings have provided the first
occasion for making it. Before these proceedings began, the Por-
tuguese Government had not relied on the aileged treaty of 1779
in any communication, either to the British Government or to
the Indian Government, since 1859. In 1859 it had been used,
not in support of a claim of sovereignty, but in support of a claim
of freedom from customs duties for Portuguese merchandise
passing from the enclaves to Daman (Indian Annex C. No. 35,
1,pp. 343-344). It is not surprising, therefore, that no fullinvestig-
ation of the rights over the enclavesdegedly confered by a treaty
should have taken place before these proceedings.

303. In paragraphs 161 and 162 of the Reply, the Government
of Portugal deny that in 1818 the Portuguese authorities either
concealed or tried to conceal the true nature of Portuguese rights
over the enclaves. "We presented ourselveç as sovereigns over the
enclaves", they say (paragraph I~I), "and we really were sover-
eigns." Clearly, therefore, on' the admission of the Portuguese
Government themselves, if they were not sovereigns of the enclaves
in 1818, there was misrepresentation. More specifically, the Indian
Government submit that it is clear, in spite of what is said in the
Reply, that the Portuguese authorities in 1818 misrepresented the
facts to the British Governrnent. The Governor of Daman, in
his letter of the 11th November, 1818 (Indian Annex C. No. 33,
1, p. 295), alleged that by a treaty "His Highness Madow Row

Naran Punt Purdan ceded to the Crown of Portugal the Purganna
of Nagar Aveli". This, in the submission ofthe Government of India,
was untrue. In the same letter, the Governor alleged that "it was
stipulated by one of the articles of.theaid Treaty that al1articles
of production of the Purganna of Nagar Avely that should be
required to be transported to the Portuguese possession of Daman REJOINDER OF INDIA (11 59) 161
should be absolutely exempted from al1 duties and Taxes.". This
was untrue. By'his answer of the 1st May, 1819 (Indian Annex C.
No. 33, 1, p. 3001,the Governor of Bombay made it clear that he

knew nothing of the "Treaty", yet the Governor of Daman, although
he referred tothe "Treaty" again in his letter of the 30th May, 1819
(Indian Annex C. No. 33, 1, p. 3oz), did not send a copy of it. By
contrast,a copy of the alleged sanad of the 26th April,1799 , hich
on its face was favourable to the Portuguese claim, had been
enclosed with the Governor of Daman's original letter of the 11th
November, 1818. In these circumstances, the Government of India
submit that they are justified in stating that the Governor of
Daman misrepresented and concealed the true facts.

304. The Portuguese Government contend that the Governor of
Darna'n cannot have intended to conceal the alleged treaty and
deceive the British authorities, because he mentioned the Treaty in
his letter of the 11th November, 1818,(RepIy,paragraph 161).What
he intended, it is suggested,ras not necessarily to conceal the exis-
tence of a "Treaty", but to conceal the true nature of the rights
or lack of rights of Portugal. Such an intention is made more, rather
than less, likely by the fact that he includein his letter an inaccu-
rate account of the alleged treaty's provisions. The suggestion made
in the footnote to paragraph 161 of the' Reply, that the Governor
n'eednot have mentioned the "Treaty" at all in his letter, is hardly
justified. He was enclosing with the letter a copy of the dleged
sanad of the 26th April, 1799, which contained the statement that
"the Portuguese Government of Goa obtained the Purganna of
Nagar Huvelee in the said district from this Government, for the

support of the Garrison of Daman". Ii was therefore necessary for
him to explain in what way the territory had been "obtained".
The Portuguese Government say (Reply, paragraph 162) that the
British authorities "certainly studied the Treaty". This is an entirely
gratuitous assumption. The Governor of Bombay's letter of the
1st May, 1819 (Indian Annex C. No. 33, 1, p. 300) shews it to be
unjustified.
305. It is suggested in paragraph 162 of the Reply that it is
unlikely thatthe Britishcan have supposed that the Portuguese had

acquired the enclaves by conquest; that there were in 1818 a num-
ber of persons still living who knew how they had become established
in Nagar Aveli; and "a mere reading of the treaty" would have
shewn that the territory ceded thereby had not been the subject of
conquest. On this last remark, it may be observed that the British
authorities did not in fact'have the terms of the alleged treaty
before them in 1818 (cf. paragraphs 303 and 304 above); nor, in
view of the discrepancies between the various versions of the
"Treaty", is it by any means certain that a reading of it
would have revealed to them that the territory of the enclaves
had been ceded to the Portuguese. Apart from this, however,162 RHJOINDER OF INDIA (II 59)

the suggesfions made in paragraph 162 of the Reply are irre-
levant to the matter now under consideration. The question is
whether the Portuguese enjoyed sovereignty over the enclaves
when the British acquired the Maratha territory in 1818 andwhether
the Portuguese concealed from the British at that tirne the tme
nature of the Portuguese rights. The only means by which it is
contended that Portugal acquired sovereignty over the enclaves

before 1818 is the aileged cession by a "Treaty of 1779" . he Go-
vernment of India submit that that "Treaty" did not confer any
sovereignty; whereas the Governor of Daman pretended to the
Governor of Bombay in 1818that it did, and, when the Governor of
Bombay answered that he knew nothing of the "Treaty", refrained
from showing it to him-no doubt because he knew that inspection
of it would have led the British to questionhis claim. The Governor
of Bombay seems simply to have believed what the Governor of
Daman tvrote about the "Trcaty" ;so that it is irrelevant to specu-
late about what he might have supposed about the origin:of the

enclaves, or what he might have discovered by questioning the old
men of the neighbourhood l.
306. The ~overnrnent of India çubmit that the Portugueçe were
not sovereigns of the enclaves in 1818, but misled the British into
thinking that they were. The most that can be said is, not that the
British recognized Portuguese sovereignty, but that they were

misled into treating the Portuguese as though they were sovereigns
of the enclaves. The argument of paragraph 163 of the Reply is
merely a repetition of the Portuguese claim that acquisition of
sovereignty over an enclave necessarily imports acquisition of a
right of passage thereto. This claim is answered in paragraphs
574-577 below.

307, It remains to consider whether the British regarded them-
selves as bound by the grant which in 1818 the Governor of Daman
represented as having been made to the Portuguese by the Marathas,
of a privilege of carrying goods from the enclaves to Daman free
of customs duties. In paragraph 147 ofthe Reply, the Government of
Portugal protcst that this question is "outside the subject matter of
the present dispute", because it concerns what they describe as the
regulation of the right of passage. The importance of the matter,
however,is that here a claim put forward by the Portuguese, express-
ly on the basis of a treaty betweèn them and the hlarathas, was

fully argued between the Portuguese and the British. Quite apart
therefore, from the difficulty of the distinction which the Portuguese

the enclavelie)and Gujerat for the ten years u1818,running to 652 dufturs
(i.e: bundles), were offfrom Poona, on their way to Bombay, onlon the
8th December, 1818 (Indian Annex F. No. 55). Many rnonths must hapassed
before the examinatioof thes652dufturs could be completed. Whthe corres-
pondence with ,the Governor of Daman took place, therefothe Governor of
Bombay can have had no idea of their contents. REJOINDER OF INDIA (11 59) 163

Government seek to draw between a right to regdate and a right
to stop, this incident indicates. the attitude adopted generally by
the British authorities in the face of nghts claimed by the Portu-
guese on the basis of Maratha grants.

308. In paragraphs 149 and 150 of the Reply, the Government of
Portugal paraphrase the letter written by the Governor of Daman
on the 11th November, 1818(Indian Annex C. No. 33,1, p. 295).The
inaccuracies of this letter have already been noticed in paragraph
115 of the Counter-Memorial, but it is necessary to draw attention
to them again. According to the Governor, "the Purganna of Nagar
Avely" was ceded to the Crown of Portugal by the Treaty of 1780
and had been governed by the Portuguese from that time. In fact,

nothing was ceded by theTreaty of 1780, and the rights which that
Treaty did create were not over Nagar Aveli but over other territory
adjacent to Daman. It was only because that other territory passed
from the Marathas in to the control of the British that the villages
forming the enclaves were substituted in 1783 and 1785 (cf. the
Counter-Mernorial, paragraphs 92 and 95). Again, the Governor
stated that it was provided by the Treaty "that al1 articles of
production of the Purganna of Nagar Avely that should require

to be transported to the Portuguese Possession of Daman should
be absolutely exempted from al1 duties and Taxes". In fact, the
Treaty contained no such provision, and it is obvious that nothing
of the kind could have been in the contemplation of the parties,
because the Treaty did not deal with Nagar Aveli at all but with
territory adjoining the existing Portuguese settlement.Furthermore,
the Governor claimed that the Peshwa had subsequently confirmed
this privilege by "a sunnud". In fact, the document to which he
referred was not a sanad, and dealt, not with customs duties, but

with zakat (cf. Counter-Memorial, paragraph 109) l.
309. The Portuguese Govern~ent contend that the fact that the
British authorities regarded themselves as free to grant or refuse
that for which the Governor of Daman was asking is no indication
of the British attitude to rights granted to the Portuguese by the
Marathas, because the Governor was asking for a modification of

the system of certificates which prevailed irnmediately before the
Marathas were overthrown. The answer to this is twofold. In the
first place, the Governor was claiming that against the Ilarathas
the Portuguese had always been entitled as of right to exemption
from duty without certificates. In his letter of the 11th November,
1818, he asked for the exemption without certificates, not as a new,

Both officia15and private travellers, in order to avoid exactions of zakat, used
t6 obtairi documents ithe nature of passportsknown as "Rahsdari Dastak".
These documents commonly contained wordssuch as these:
"..will proceed unmolestedon the way and withoutany harassmentiorthe
payment of zakat".(For example, see Indian Annex F. No. 56.)
The similarity othislanguage to thausedin the documentof the 26th April,
1799 will be observed. REJOINDER OF INDIA (II59)
1~4
or renewed, favour to be negotiated, but as a matter of "faithful
observance of the above-mentioned,artia cldein",is letter of the
30th May, 1819 (Indian Annex C. No. 33, 1, p. 302) he referred to
"the impropriety" of requiring certificates. It was this demand,
based allegedly on arrangements between the Portuguese and the

Marathas, which the British considered themselves free to grant
or reject according to considerations of policy. Secondly, it is the
Portuguese case that the limited right of exemption subject to
certificates was enjoyed by them under an agreement made with
the Marathas; but the British authorities, aithough for a time they
did allow this system to continue, did not regard even it as a right
of the Portuguese which they were obliged to recognize. Thus, in
his letter of the 18th June18x9 (Indian Annex C. No. 33,I, p.304)~
the Governor of Bombay descnbed it as "the concession which has
been made to the Portuguese Government". The Portuguese
authorities seem themselves at a Iater stage to have shared this
view; on the 13th December, 1824, the Governor of Daman wrote
to the Governor ofBombay asking for the maintenance ofthe system
and, so far from claiming it as a right, said he would "consider it
a very particular favour conferred on me" (Indian Annex C.No. 33,

1, p.308).

310.In the course of the correspondence ansingout of the Gover-
nor of Daman's letter of the 11th November, 1818, the Secretary to
the Government of Bombay wrote, on the 31st December, 1818, to
the Chief Secretary to the Supreme Government at Fort William
(Indian Annex C. No. 33,I, p. 298), and said that the plea that the
concession had originally been made by the Marathas "appears to
the Governor in Council to be entitled to little weigh:and it is con-
sidered a question of Policy alon...".This language is obviously in-
consistent with the existence ofany right, butthe Portuguese Govern-
ment try (Reply, paragraph 154)to brush it aside as having been used
"in a document for the internal use of the British Chancellery". It is
hard to seewhy the views of the Government shouldbe less accurate-
ly expressed in a document for "interna1 use" than in any other
document. Furthermore, the letter of the pst December, 1818,
asked for instructions about the attitude the Government of Bom-
bay were to adopt to the Portuguese claims. It is hardly to be

thought that, in asking the Governor General for such instructions,
the Government of Bombay deliberately misled him about their
own view of the position. The Portuguese Government also suggest
that the language of the letter is understandable with reference to
the total exemption originally granted (according to them) by th:
Treaty, because a later arrangement with the Marathas had sub-
stituted the system of exemption subject to 'certificates. The fact
remains, as shown in paragraph 309 above, that in 1818 the Portu-
guese were claiming to enforce the original terms of the Treaty.
This is confirmed by the report made on the 17th June, 1851 by the Governor-General of Portuguese India to the Secretary of State in
Lisbon (Reply, Annex No. 96,II,p. 718),in which he remarked that
in 1818 the Governor of Daman

"a demandé à celui de Bombay d'observerledit Traité,L'exemption
dedroitsen risubtant"l
Itwas in the face of this that the Government of Bombay regarded

the reliance upon the hlaratha grant as "entitled to little weight".
311. In paragraph 155 of the Reply, the Government of Portugai
refer to the letter of the 1sMay, 1819, from the Governor ofDaman
tothe Governor of Bombay in which he wrote that the Peshwa had
not communicated to the British "any reservation of privileges to
the Portuguese Government", so that "any exemption" so granted
did not bind the British(Indian Annex C. No. 33,I, p.300)~ .elying

on this, the Portuguese Government contend that the British
authorities were assuming freedom to deal only with "privileges"
and "exemptions", not with rights. In answer to this, it is enough to
observe that inthe opening sentence of that very letter the Governor
of Bombay referred to the Portuguese claim as a claim to "a privi-
lege which had been granted under a Treaty". It is thus cIear that
in "privileges" the Governor included treaty nghts.
312, The Government of Portugal submit in paragraph 157 of the
Reply that in his letter of the 11th November, 1818,the Governor

of Daman pointed out that the position of Nagar Aveli made it
necessary for its products to pass'through the territory separating it
from Daman, and this plea of necessity excited no objection on the
part of the British authorities. The necessity which the Governor
mentioned was in fact merely physical, or geographical, necessity.
He based no right upon it, and in consequence the British authori-
ties neither recognized, nor even considered, any such right. The
Governor of Daman based his claim solely on the Treaty of 1780.
Indeed, the Portuguese Government themselves rely on this circum-
stance, since they represent the British acceptance of the system of
exemption subject to certificates as acceptance of an obligation
arising from a Maratha grant. If the Governor was in fact relying,
not on the Treaty, but on necessity, the Portuguese argument, that
the British accepted obligations under treaties or agreements
vesting in them as successors to the Marathas, falls to the ground.

313. The Government of India submit that the issue whether
rights granted to the Portuguese by the Marathaç under trcaties
and agreements were binding upon the British was clearly raised in
1818. Equally clearly the British authorities refused to recognize
any such obligation. If any doubt about this remains, it is entirely
removed by what happened subsequently. In 1849 the British
Government terminated the system of exemption subject to certi-

I Italics added.166 REJOINDER OF INDIA (II59)

ficate (thereafter only articles for the private consumption of the
Governor of Daman were passed free of duty). Clearly, therefore,
the British did not regard this system, which, according to the
Portuguese Government, rested upon an agreement between the
Portuguese and the Marathas, as binding upon them; and even the
Portuguese authorities appear to have made no protest at its
abolition (cf. Counter-Memonal, paragraphs 124-127).

III. TRANSI TF PERSONS

314. The section of the Reply dealing with transit of persons
opens with a passage (paragraphs 165-173 in)which the Govern-
ment of Portugal contend that passage between Daman and the
enclaves and between the two enclaves took place continuously
during the British period; this practice indicited the existence of a
right; and the British, so far from challenging this right, recognized

and respected it. In the submission of the Government of India, this
argument rests entirely upon a confusion oftransit in fact with tran-
sit by right. Having stated that it was normal for persons to travel
over British territorybetween Daman and the enclaves, the Portu-
guese Government proceed at once to the conclusion that they had
a right to do so. Even if the premise be granted, the consequence
does not by any means follow. Examples could easily be quoted of
passage over the territory of a sovereign State taking place norrnally
and regularly for years without the faintest suggestion of the
existence of a right of passage; e.g. passage from a land-locked
State over the territory of another State to the sea. The reason for
this is that a State may allow persons to pass through its territory
without conceding to them any right. So long as such passage is
convenient to those who desire to exercise it and does not embarrass
the State whose territory is crossed, it is natural that the passage

should be allowed, as a matter of neighbourliness and good will. The
attempt, however, to deduce from a favour of this kind a legally
enforceable right is entirely and obviously unwarranted. The mere
occurrence of passage is equivocal. It may indicate the existence of
a right; but equally it may indicate that the sovereign of the inter-
vening territory, although entitled toprohibit the passage, has not
wished to do ço.
315. Simply to shew, therefore, that persons did travel between
Daman and the enclaves is not to establish any part of the Por-

tuguese claim. These petty pieces of Portuguese territory were
of very little consequence to the British, and it is quite under-
standable that, as in the case of other foreign settlements in
India, they should have aIIowed travellers to psss to and fro
rather than bother themselves with a system of passports or
permits. The Portuguese case would be forwarded only if itcould
be shown that the British allowed such passage, not because they
chose to do so, but because they had agreed to do so (or were REJOINDER OF INDIA (1159) 167
obliged to do so by some principle of law).There is nothing in the

Reply to support a suggestion that the British regarded themselves
as subject to such an obligation. On the other hand, the material
before the Court contains a number of clear indications that neither
the British nor the Portuguese believed a right of passage to exist
(cf. paragraphs 337-343 below).
316. The false reasoning which characterizes thispart ofthePortu-
guese argument is exempLified at once in paragraph 165 of the
Reply. "The right of transit of perçons from Daman to the enclaves
and vice-versa", we are told,"thus appeared as a continuous, peace-
ful and unchanging practice." This sentence shews clearly the
confusion of transit with right of transit, and the step,gically and
legally unwarranted, from the occurrence of transit to the existence

of a right. As has been pointed outabove, there is no need to postu-
late the nght in order to account for the transit. The Portuguese
argument thus falls to the ground.
317. It is said in paragraph 165 of the Reply, that this alleged
right of transit "fully attained its purpose" of making possible
"the access necessary to avoid isolation of the enclaved territones
and their separation from the rest of Portugal". This reference to a
"purpose" attained by a "right" might suggest that the "purpose"
was incumbent upon both British and Portuguese and was achieved
by a "right" recognized by both. This, of course, is to beg the whole
question in issue. It may welI have been the purpose of the Portu-

guese to prevent the separation of the enclaves from Daman. It by
no means follows that the British were obliged to facilitate the
achievement of this purpose. "The accessnecessary" may have been
allowed by the British over a considerable period, but it by no
means followçthat the British and their successors were not entitled
to interrupt it.Likewise, in paragraph 166 the Portuguese Govern-
ment observe that there was always a single seat of the administra-
tion of both enclaves (situated first in Dadra and subsequently in
Nagar Aveli), and suggest that this can be explained only by "the
certainty available to the Portuguese Government" that its-officials
could pass from one enclave tothe other. Here again, it is impossible
to infer from the facts statedthe existence of any right. As is stated
in the same paragraph (166) of the Reply, transit between the
enclaves "always took place without giving rise to the least oppo-
sition". The fact that such transit was permitted, irrespective of the
question whether it could legally be claimed, is quite sufficiento
explain the maintenance of a single administration for the two

enclaves. It is, after all, to be presumed that only in the very last
resort would a separate administration have been established for
the tiny settlement of Dadra.
318. In paragraph 167 of the Reply, theportuguese Government
refer to four documents (Annexes Nos. 77-80), apparently for the
purpose of showing that from 1825 onward there was a garrison in 168 REJOINDER OF INDIA (II59)

Dadra, which was relieved periodically from Daman. It is not
necessary to repeat the arguments by which it has already been
shewn that the mere occurrence of passage across British territory
does nothing to establish a right of passage (cf. paragraphs 278and
314-31 a5bove). There is special need of caution in considering cases
in which Portuguese troops have crossed British territory. We have
already seen that, whereas the Portuguese Government have.produc-
ed a number of documents (Annexes Nos. 50-76)for the purpose of
trying to shew that during the period ofthe Treaty of1878 Portugue-
se troops crossed British territory between Daman andthe enclaves
without any request for permission, contemporary correspondence
between the Government of Portuguese India and the Government
of Bombay reveals that the former both recognized that permission

was needed for such passage and maintained that permission was
always asked (cf. paragraphs 288-296 above). It follows that the
movements to which Annexes Nos. 50-76 refer must either have
been preceded by grants of permission, or have been carried out
clandestinely in what the Portuguese authorities knew to be an
illegal manner. This shews that it is unsafe to draw inferences from
the mere fact of the passage of parties of troops, unless fulldetails
are available both of each march and of what preceded each march.
This must be borne in mind when paragraph 167 of the Reply is
considered, No details are there given of any particular case of
transit. It is therefore quite possible that permission of the British
authorities was asked and obtained on each occasion. Equally, it is
possible that (as may have happened again in the period of the
Treaty of 1878) the Portuguese authorities failed to açk for permis-

sion which they knew to be legally required. Another possibility is
that the passage of troops was referable to the reciprocal arrange-
ments mentioned in paragraph 323 below. .

3x9, In paragraph 167, the Government of Portugal observe that
a the commandant living at Dadra was forced, in order to reach
Nagar Aveli, to cross British territory, as wereal1the other inhabi-
tants. This idea of necessity reappears in paragraph 169, in which it
is said that both British and Portuguese "recognized and accepted
that which the very nature of things made necessary, Le., that the
existence of the enclaves represented a special case which made
transit through neighbounng territories absolutely necessary and
which, for that reason, the State which held the sovereignty over

these territories could not prohibit". In this connection also, it is
essential to distinguish between the mere geographical fact of the
isolation of the enclaves and the legal consequence which the Portu-
guese Government now seek to draw from it.It is no doubt true
that the British authorities understood, as well as the Portuguese,
that it was necessary to cross British territory in order to travel
from Daman to the enclaves and vice-versa; but there is no material
whatever to support the view that the British authorities recognized, REJOINDER OF INDIA (II 59)
169
as a consequence of this, the existence of any right of passage
across British territ ory.

320. The Portuguese Government cite two incidents irisupport of
their contention thatthe British authonties recognized special rights ~
arising from the peculiar situation of the enclaves. The first is that
of the disarming of two Portuguese soldiers at Tarrapoor in 1859,
and the second that of the arrangement of 1940 concerning the pas-
sage of police. It may first be observed that, if the contention that \
,
the British recognized such special rights rests çolely upon these
two incidents, then, whatever the nature of the two incidents, it can
hardly be regarded as fully established. These are two incidents ,
alone from a period of 130years ;they are widely separated in time,
and the second belongs to the very last period of British rule; and
the first had nothing directly to do with transit between Daman
and the enclaves at all. Quite apart from these conçiderations, +
however, an examination of the two incidents shews that neither of 1
them gives any support to the Portuguese case. ,

321. The incident of 1859 arose from the disarming by the British
police at Tarrapoor of two Portuguese soldiers on their way from
Daman to Bassein. It did not, therefore, concern passage between
Daman and the enclaves. The Portuguese Government mention the
incident for the purpose of relying upon the silence of the British
authorities in the face of certain language used by the Governor-
General of Portuguese India. In his letter of the 16th May, 1859 to
the Governor of Bombay complaining of the treatment of the two
soldiers (Indian Annex C. No. 39,I, p. 363). the Governor-General
asked that such incidents be prevented,

"in view of the fact that in the territory of Damgo and in that of
Goa English soldiers corneand go armed without anybody causing i
them hindrances when they hold the necessary authorizations
issued by the English authorities; and ccnsequently it isnot to be '
expected that the same procedureshould not be adopted in respect
of the Portuguese.soldiers in the British terntories, inasmuch as
in Dam50 itso happens that there are many Portuguese villages ,
surrounded by British territory".

As the Indian Government pointed out in their Counter-Mernorial '
(paragraph 135) ,he Governor-General based his claim in this letter
on reciprocity, and only mentioned the existence of the villages
surrounded by British territory as an additional circumstance with- %
outtrying to base any special right upon it.The Portuguese Govern-
ment answer (Reply, paragraph 170) that the failure expressly to ,
mention any special right is understandable, "first because no
conffict existed which would have caIled for an express rerninder !
and then bec'ause, in the specific case at hand, this transit (Le.
transit between Daman and the enclaves) was not directly in !
question". REJOINDER OF INDIA (II59)
I.7O
The fact remains, however, that the Governor-General was re-
guesting facilities for Portuguese troops to pass through British
territory, and in support of this request was referring to the situa-
tion of the enclaves. In such a context, he would naturally be expect-
ed, whatever may or may not have been directly in question, to

base upon the peculiar situation of the enclaves as much as he
thought he justifiably could. If he thought that that situation gave
rise to a right of passage, albeit over only one part of Bntish terri-
tory, it is incredible that he should have mentioned the enclaves
only for the purpose of bolstering up a request for reciprocal pri-
vileges. (It may be added that thiç is only one of a number of occa-
sions on which the Portuguese would naturally have insisted upon
passage as a matter of right, if in fact they believed that right to
exist; yet no express clairn of a right of passage has been produced.
Quite apart from other considerations, it is difficult to believe in the
existence of a right which was never asserted during a period of
more than a century, although on several occasions its assertion
would have been to the advantage of the party now claiming it.)
The Portuguese Government assert (Reply,paragraph 170) that the

reference to the peculiar situation of the enclaves "could 'have no
other meaning than the recognition of the existence of a right of
transit to these enclaves". Such a reference might be made for the
purpose of claiming, not a right, but an indulgence. The Govern-
ment of India submit that it is clear that the Governor-General did
refer to the enclaves for the purpose of supporting his request for
an indulgence on grounds of reciprocity.

322. Ths mention of the enclaves in the letter of the 16th May,
1859 in fact lends strong support to the Indian case. In that letter,
the Governor-General was discussing the passage of Portuguese
troops through British territory generally. It is in that connection
that he refers to passage to the enclaves. Had passage to the en-
clavesbeen governed (as the Government of Portugal now contend)
by some special régime, applicable to the British territory between
Daman and the enclaves but not to British territory in general,
such a reference would have been irrelevant in a letter dealing with
passage through Bntish territory in general. If, on the other hand,
passage between Daman and the enclaves was a particularly clear
example, but still only an example, of arrangements applicable to
British territory generally, the reference in the Governor-General's
letter becomes intelligible. This letter thus supports the view that

passage of Portuguese troops between Daman and the enclaves was
not a matter of right, but depended upon such general arrangements
as might be made by the British and Portuguese Governments.
323. There remains one more observation of great importance
to be made upon the letter of the 16th May, 1859. The Governor-
General of Portuguese India wrote that English soldiers holding
an authorization issued by the English authorities were allowed to REJOINDER OF INDIA (II59) I7I

pass freely through Portuguese territory, both in Daman~and in
Goa; and for this reason he asked that Portuguese soldiers should
on the same terms be allowed to pass through British territory,
including the territory surrounding the enclaves. Thus, the request
that Portuguese troops be allowed to pass through British territory,
including the territory between Daman and the enclaves, was made
on the basis of reciprocity. This is obviously inconsistent with the

existence of a right of passage between Daman and the enclaves.
Had there been such a right, the Portuguese would have claimed
that passage, at least , without offering passage through their own
territory inreturn. Furthermore, the letter shews that the Governor-
General did not regard passage between Daman and the enclaves
as a special and peculiar case. Had he done so, he could not have
regarded it (as he did) as part of the question of "the Portuguese
soldiers in the British territories" in general; nor could he have
regarded (as he did) the passage.of Portuguese troops over British
territory between Daman and the enclaves as comparable with the
passage of British troops over Portuguese territory generally in
Daman and Goa. Finally, this letter reveals the basis upon which
troops of either power entered the temtory of the other in the years
before 1879. The reciprocal arrangement explains certain incidents

upon which the Portuguese Government rely (cf. paragraph 356
below), and may also be the reason why so few records have been
found of incidents concerning the passage of troops during the
period before the Treaty of 1878.

324. In paragraph 171 of the Reply, the Portuguese Government
refer to the incident of 1940 which led to an agreement concerning
the passage of armed police, both British and Portuguese, over the
Daman-Silvassa road (Indian Annex C. No. 57). They Say that the
Governor of Portuguese India referred to the special nature of the
road linking Daman and Nagar Aveli, the British authorities
accepted its special nature and the result was the agreement. An
examination of the correspondence shews that there is nothing in

this incident to suggest that the British authorities recognized the
existence of special rights arising from the peculiar situation of the
enclaves, and the "special nature" of the road had no reference
to the fact that it linked Daman with the enclaves. The position
appears from the following extract from the letter of the 11th
Apnl, xg40 of the Chief of the Cabinet of the Government of Por-
tuguese India (Indian Annex C. No. 57, 1, p. 473) :

"5. The road whichruns from Damaun to Silvassapasses several
times through British territory, and so iis inevitable that armed
police forces of the two Governments have to utilise frequently,
while travellingon it,portions which belong to the other Govern-
ment, thus rendering necessary the proper authorization which,
aithough it has neverbeen refused, iwill be difficult to obtain (in
time)in urgent caseswith manifest detriment to the missions which REJOINDER OF INDIA (II 59)
172
they may have to fulfil, and this may give rise to incidents which
are always disagreeable.
6. The Government of Portuguese India thinks of the possibility
ofcoming to an understanding with the Government of Bombay,
by which on this road, and only on this road, owingto its special
nature, armed police forces of both the Governments rnay travel
freely, independently of any previous authorization."

In describing the road in question as having a "special nature",
the Chief of the Cabinet was not referring to the fact that it was
the means of communication between Daman and the enclaves,
but to the fact that it "passes several times through Bfitish terri-
tory". This might be true of any road running in the frontier area
between two territories. In referring to this characteristic, therefore,

the Chief of the Cabinet was not referring to any peculiarity arising
from the special position of the enclaves. This iç confirmed by the
nature of the suggestion which he made. Had this been based upon
necessity arising from the special position of the enclaves, he would
have insisted upon the special right of Portuguese armed police to
travel along the road from Daman to the enclaves and vice versa.
In fact he claimed no such right, but suggested a reciprocal arrange-
ment entitling armed police of either pourer to travel along this
road through the territory of the other. Thus, so far from claiming
a special rightof passage tothe enclaves, he equated the position of
Portuguese police travelling over British temtory between Daman
and the enclaves with that of Bntish police travelling over Portu-
guese territory between one part of British territory and another.
The suggestion made was for the convenience of the British as

rnuch as that of the Portuguese. Indeed, the incident from which
it arose was not an incident in which Portuguese police had been
impeded, but an incident in which Bntish armed police had been
prevented from travelling through Dadra.

325. The Government of Bombay accepted the suggestion made
in the letter of the 11th April,1940 only subject to limitations. The
Chief Secretary of the Political and Services Department of the
Government, in his letter of the 30th July, 1940 to the Chief of the
Cabinet of the Government of Portuguese India (Indian Annex C.
No. 57,1, p. 482), said the Government of Bombay was

"prepared to enter into reciprocal arrangements with the Govern-
ment of Portuguese India in the matter, subject to the understanding
that the armed police travelling across intervening British territory
on the road in question should not exceed ten in numberatone time
and that intimation of their passage through British territory is
givenby post to the local authorities within 24 hourofthe passage.
'If any nimber exceeding ten at a time are required so to travel at
any time the existing practice should be followed and concurrence
heretofore."sh authorities should be obtained .by prior notice as REJOINDER OF INDIA (II59) I73

The Governor-General of Portuguese India agreed to this proposa1
of the Government of Bombay (Indian Annex C. No. 57, 1,p. 482).
326. In paragraph 175 of the Counter-Mernorial, the Government
of Iiidia submitted that

"the close limits seby theGovernment ofBombay to this arrange-
ment are quite inconsistent with the existencofany general right
of passage for police".
The Government of Portugal dispute this view (Reply,paragraph
171). They argue that, in view of the peculiarity of transit between
Daman and Nagar Aveli, the arrangement presupposed the exis-
tence of a right to such transit, and operated only to regulate it;

such regulation, they Say, was consistent with the existence of the
right,because the armed police were able to pass, provided the
formality was on each occasion observed of notification (for a party
often or fewer) or permission (for a party of more than ten). The
Indian Government submit that this argument is wholly inadmis-
sible. First, itas already been observed that the correspondence
contained no reference tothe peculiarity of transit between Daman
and Nagar Aveli. There is therefore no warrant for the suggestion
that the arrangement presupposed the existence of a right derived
from any such peculiarity. So far from this, the Chief of the Cabinet
of the Government of Portuguese India, in his Ietter of the 11th
April,1940 (Indian Annex C, No. 57,I, p. 473), while observing that
it was "inevitable" that armed police of either power should
"frequently" have to pass through the territory of the other on this
road, added that "the proper authorization" had to be obtained in
each case. Secondly, the Indian Government respectfully repeat
that the nature of the arrangement was incompatible with the
existence of a general right of passage for armed police. The arrange-

ment expressly provided that a party of Portuguese armed police
exceeding ten in number could cross British territory only with the
previous permission of the British authorities. The Portuguese
Covernment suggest that this was only "regulation", because such
parties were able to cross, provided that the preliminary formality
of permission was observed. This ignores the fact that essence of a
right of passage is the power to pass without permission. If per-
mission is needed, there is no right. Finally, it must be borne in
mind that in the correspondence of 1940 the British and Portuguese
Governments were discussing expressly, and solely, the use by
armed police of a road running between Daman and the enclaves.
In the whole correspondence no right of passage for Portuguese
police is somuch as suggested. The Portuguese Chief of the Cabinet
himself drew no distinction between British and Portuguese police
on this road, and suggested a reciprocal arrangement. So far from
maintaining that the rnatter was governed by any right, he only
suggested "the possibility of coming to an understanding". The
British authorities agreed to a reciprocal arrangement for par-

=3I74 REJOINDER OF INDIA (II59)

ties of ten or fewer, but insisted that for parties of more than ten
their permission must be obtained. In these circumstances, it is
impossible to suppose that eitherside believed any right of passage
to exist.
327. Itmay be added that on this view the arrangement of 1940

was entirely consistent with earlier arrangements. In 1913 an
arrangement was made for the passage of British and Portuguese
anned police through Portuguese and British territory respectively
(Counter-Mernorial, paragraph 167; Indian Annex C. No. 53).This
arrangement was based entirely on reciprocity. Neither in the nego-
titations nor inthe terms of the arrangement did the Portuguese seek
to reserve any special right of transit between Daman and the en-
claves. In 1920 the Governments of Bombay and Portuguese India
entered into an agreement "regarding the entry of British Police
Officers into Portuguese territory and vice versa" (Counter-Memo-
rial, paragraph 173; Indian Annex C. No, 56).This agreement
provided expressly that armed police below the rank of Head of
Circle or Sub-Inspector might not enter foreign territory without
previous consent, unless in actual pursuit of an offender. It con-
tained an express reservation of the rights of British police escorts
travelling by rail from stations in British India to Marmagao
harbour, but no mention of any special rights of Portuguese police

travelling between Daman and the enclaves.
328. In paragraph 172ofthe Reply, the Government of Portugal
again refer to the constant occurrence of transit over Indian terri-
tory between Daman and the enclaves, and repeat their submission,
based on their Annexes Nos. 50-76, that, while the Treaty of 1878
was in force, its provisions were not applied to passage of troops
and police between Daman and the enclaves. It has already been
shewn that the mere fact of constant transit is purely equivocal
(cf. paragraphs 278 and 314-315 above), and the Portuguese case
based on their Annexes Nos. 50-76 is destroyed by reference to con-
temporary documents (cf. paragraphs 288-296 above). In these
circumstances, there is no foundation for the bare assertions re-
peated in paragraph 173 of the Reply.

329. In paragraph 175 of the Reply, the Portuguese Government
say that to use examples of passage between districts which are
neither Daman nor the enclaves in order to prove that no right of
passage between Daman and the enclaves existed, is reasoning so
obviously defective that it is "almost useless to attempt to refute it
any further". Certainly the Portuguese Government do not attempt
to refute it any further; but in adopting this attitude they are
guilty once more of begging the question. If transit between Daman
and the enclaves constituted a special case subject to special rightç,
then it would be irrelevant in a discussion .ofit to refertotransit
between other districts, but whether transit between Daman and

the enclaves did constitute such a special case, and was subject to REJOINDER OF INDIA (11 59)
I75
special rights, is precisely the question in issue. Before arguments
based on transit between other districts can be dismissed in the
high-handed manner employed in paragraph 175 of the Reply, the
special legal character of transit between Daman and the enclaves

has to be proved. The burden of this proof rests on the Government
of Portugal, and, in the submission of the Indian Government, it
has not been discharged.:If no special legal character attaching to
transit between Daman and the enclaves is established, but (as
t...G..ernment of India contendl thI auestIon of such transit is
only part of the general question of transit from one Portuguese
district to another through British territory or frorn one British
district to another through Portuguese territory, then, so far from
the reasoning mentioned in paragraph 175 of the Reply being
obviously defective, examples shewing the basis on which transit
was allowed between other districts are obviously relevant. It
is clear, at any rate, that the Government of India are not the
first to regard transit between other districts as relevant to ansi:

deration of transit between Daman and the enclaves. On a number
of occasions Portuguese officiais referred to facilities for transit.
granted by them in other places in support of requests for such
facilities between Daman and the enclaves: cf. (e.g.) letters of the
.Governor General of Portuguese India of the 27th May, 1892
(Indian Annex C.No. 41,I ,. 378), the 2nd September,1897 (Indian
Annex C.No. 43,I, p. 393), and the 6th March, 1900(Indian Annex
C. No. 43, 1,p. 396), and letter of the acting Governor of Daman of
the 1st March, 1904 (Indian Annex C. No. 47, 1, p. 435). It is also
relevant to recall the[Governor-General's letter of the 16th Ma1859
(Indian Annex C. No. 39, 1, p. 359; cf. paragraph 321 above), in
which transit between Daman and the enclaves was mentioned on
exactly the same footing as transit across British or Portuguese
temtory in general.

330. The Portuguese Government proceed, inparagraphs 176-178,
to criticise the submissions made in the Counter-Memorial about the
passage of troops and police between 1817 and 1879.They observe:
that only three cases are cited, and try to shew that al1 three are:
irrelevant. They also draw attention to a change of emphasis be-
tween the submission made in the Counter-Mernorial (paragraph

136) and the corresponding submission made in the Preliminary
Objection (paragraph 108). Finally, fastening upon the form of
words used in paragraph 136 of the Counter-Memorial, they ask
why the Government of India puts forward these three cases, if they
have only a negative significance. These criticisms, in the submis-
sion of the Indian Government, reveal a failure to understand the
true effect of the three cases and thepurpose for which the Indian
Governrnent rely upon them.

331.This' purpose is clearly set out in paragraph 132 of the.
Counter-Memorial, in the following words:17~ REJOINDER OF INDIA (II59)
"There are three incidents which shethat entry of soldiersand
police was regarded as lying entirely with the control.of Gov-
ernrnentofthe territory to be traverseand no reliancwas placed
upon any right alleged to exist by treaty, custom or any principle
oflaw."

An examination of the three cases shews that their effect is indeed
that claimed inthe words just quoted. Thus, the incident of 1851
(Counter-Memonal, paragraph 133; Indian Annex C. No. 37) shews
that the Governor of Daman did not recognize any right of British
police to enter Portuguese territory inorder to arrest crirninals, nor
did he claim any such right for Portuguese police. The incident of
1857 (Counter-Mernorial, paragraph 134; Indian Annex C. No. 38)
shews that the British authorities did not regard passage of British
troops through Portuguese territory from one part of British terri-
tory to another as a matter of right, but as a matter of favour. The
incident of 1859 (Counter-Mernorial, paragraph 135; Indian Annex

C. No. 39) is particularly important. The correspondence in connec-
tion with it, shews, first, that both Governments regarded the
passage of their troops through the territory of the other as a
matter for reciprocal arrangement, not as a matter of right, and
secondly, that the Portuguese Government regarded passage
bctween Daman and the enclaves merely as part of the general
question, not as a case governed by any special right. This has been
shewn in the examination of the incident in paragraphs 321-323
above. (In paragraph 177 of the Reply, the Government of Portugal
again refer to "the specialcase of passage between Daman, Dadra
and Nagar Aveli", but, as elsewhere, with absolutely no warrant.)

332. It thus appears that these three incidents do establish, as the
Government of India claimed in paragraph 132 of the Counter-
Memorial, that between 1817 and 1879 the passage of troops and
police, including that of Portuguese police between Daman and the
enclaves, was regarded on both sides as a matter for reciprocal
arrangement and no rights of passage were claimed. In these cir-
cumstances, differences of language and emphasis between the Pre-

liminary Objection and the Counter-Memorial, of which the Portu-
guese Government seek to make much, are of no substantial impor-
tance. The comments made on the three incidents in paragraph 176
of the Reply are based, like so much more of the Portuguese argu-
ment, on the assumption that transit between Daman and the
enclaves was a peculiar case, subject to rights which did not affect
transit through any other parts either of British territory or of
Portuguese. Enough has already been said to shew that this assump-
tion not only ignores the burden of proof resting upon Portugal, but
is also contrary to the facts.

333. Reference may again be made here to the negotiations pre-
ceding theTreatyof 1878 (cf.paragraphs 297-298 above).The attitude
adopted by the Portuguese Government in those negotiations pro- REJOIKDER OF INDIA (II 59) I77
vides clear evidence that at that time the Portuguese had no right
of passage over any British territory. The fact, as pointed out in
paragraph 323above, is that before 1879theentry of troops or armed

police of either Government into the territory of the other was
governed by a reciprocal arrangement. The existence of such an
arrangement naturally made it unnecessary for a formal request to
be made and permission to be granted on each occasion of entry.
This explains the paucity of documents relating to this period, upon
which the Portuguese Government comment at paragraph 176 of
the Reply. The British Government preferred to retain the recipro-
cal arrangement, rather than become involved in the bothcr and
expense of applying for and granting permission. The arrangement
was wide in its scope, but it was inconsistent with the pre-existence
ofany right of passage (cf. paragraph 349 below) ;and no document
of this period has been produced containing any dusion to such a
right.

334. The answer of the Portuguese Government to the Indian
argument concerning passage of troops and armed police between
1892 and 1947 is contained in paragraphs 179-187 of the Reply.
What is said in this passage is open to various criticisms; but it is
even more remarkable to find that the Government of Portugal
have no answer at al1to give to some of the most significant points
of the Counter-Memorial (cf. paragraphs 336-338and 340-343below).

335. In paragraph 179 of the Reply, the Portuguese Government
refer to a number of incidents described in the Counter-Mernorial.
(That mentioned in paragraph 179 (c) as "case of 1918" is in fact
an incident of 1913.) After pointing out in paragraph 179 that the
greater part of these incidents are cases of transit between places
"which are neither Daman nor the enclaves", the Government of
Portugal contend in paragraph 180 that such incidents "have
nothing to do with transit between the territories of Daman, Dadra
and Nsgar Aveli". This is but another reappearance of the farniliar
Portuguese argument which starts by assuming what has to be
proved, i.e. that transit between Daman and the enclaves consti-
tuted a special case. This argument has already been refuted more
than once in the course of this Rejoinder (cf. paragraphs 284, 322,

324 and 329 above), and there is no need to refute it againIf transit
between Daman and the enclaves was in fact not a special case but
an example of transit across British territory in general, the terms
upon which Portuguese troops were allowed to enter British terri-
tory elsewhere are obviously relevant to the question in issue.
336. The incidents described in the Counter-Memorial do more,
however, than shew the general nature of the arrangements for
the passage of Portuguese troops through British territory. They
contain express statements, both from the British side and from

the Portuguese, shewing that no right of passage over any territory
was either claimed or conceded. The Reply has nothing tosay about17~ RBJOINDER OF INDIA (II59)
these statements, and it is worth recalling them in order to appre-
ciate the great significancé.of this silence on the part of the Portu-

guese Government.
337. Thus, in connection with the incident of 1901 ,he Secretary
to the Government of Bombay, Political Department wrote to the
Portuguese Consul General in British India on the 26th November,
1901, as follows (Indian Annex C. No. 51, 1, p. 453):

"..the entry of armed troops into British terntory cannot be
permitted until the orders of Governrnent have been'obtained and
instructions issued to the local British officerçconcerned".
It rvill be obsérved that this çtatement is abçdutely generai in
its termç, and does not make an exception of entry into any part
of British territory. The Government of Bombay made another
statement to the same effect in the case of 1913, as a result of the

arriva1 of a Portuguese force in Bombay without any previous
request for permission. The Secretary to the Governmënt wrote
on the 15thSeptember, 1913 to the Secretary-General to the Govern-
ment of Portuguese India (Indian Annex C. No. 54, 1, p. 468),
asking that the Governor-General of Portuguese India çhould
"issue orders to secure that in future Portuguese troops do not cross
the frontier of the Bombay Presidency until permission for such
entry is definitely known to have been received from the Govern-
ment of Bombay or from higher British authority".

On the 11th January, 1916 a party of Portuguese soldiers arrived
in Bombay from Daman, having crossed British territory without
permission. The Portuguese Consul-General actually went to the
length of sending them back to Daman, because, as he put it
(Indian Annex C. No. 55, 1, p. 469),
"the required permission to pasç through was not previously asked
for by the Government of Damaun".

On the 12th February, 1916 ,he Consul-General sent the following
telegram to the Governor of Diu (Indian Annex C. No. 55,1 p.'470):
"Always when soIdiers have to cross British territory beg corn-
municate beforehand according to resolution between Government
Portuguese India and Britishto ask forindispensable authorisation
and after being granted the soldiers cproceed journey.

338. These staternents are too clear to need elaboration. Inthe
first three bothBritish and Portuguese authorities recognise that
passage of Portuguese troops through British territoryis something
requiring previous permission. In thefourth, the ~ortu~uese Consul-
General says cxpressly that for Portuguese soldiers to cross British
territory "authorization" is "indispensable" not on certain occa-
sions only, but "always", and only when it has been granted can the
soldiers proceed. Such are the state-ments which, in their Reply, the
Portuguese Government do not so much as mention. REJOINDER OF INDIA (11 59) I79
'339. In paragraph 179 (e) of the Reply the Portuguese Govern-
ment appear to suggest that two cases mentioned inthe Counter-

Memorial, concerning what they describe as "isolated individuals",
are for that reason irrelevant, One of these cases in fact concerned
a major with his wife and familytravelling to Nagar Aveli, and the
other a musician. The Government of India respectfully fail to
understand how it can be suggested that these cases are irrelevant,
If permission had to be asked before one officer codd pass through
British territory, permission must a fortiori have been needed for
the passage of a military detachment.

340. The statements mentioned in paragraphs 337 and 338 above
arenot the only omissions from this part of the Reply. The Portu-
guese Government do refer to what they cd the "case of 1912", but
Say nothing of the fact that this incident gave rise to a reciprocal
arrangement for the passage of parties of armed police. The Portu-
guese Consul-General wrote to the Secretary to the Government of
Bombay, Political Department on the axst January, 1913 (Indian
Annex C. No. 53,1, p. 462), stating that the Government of Portu-
guese India had

"no objection whatever to the passage of British Police forces
through Portuguese territory when engaged in the discharge of
their duty, ....provided there is the same reciprocity under
similar conditions...".

The Government of Bombay replied on the 20th February, 1913
(Indian Annex C. No. 53, 1,p. 463), that
"Government are willing to grant reciprocityin the matter of
allowingparties of Portuguese Amed Police to travel across inter-
vening British terntory when it is necessary for them to do so in
journeying from one part ofPortuguese India to another, provided
that previous intimation of theirintention is given to the local
authorities." i

It is to' be noted that in this transaction neither Government
regarded passage through any part of itsterritory of the other's
armed police as something which they were bound to allow. Each
Government regarded such passage as a concession to be made upon
terms-the terms of reciprocity. The Portuguese Government make
much in these proceedings of the "necessity" of travelling across
the intervening territory in order to get frorn Daman to the enclaves
or vice versa. In the letter of the 20th February, 1913 he Govern-
ment of Bombay referred expressly to cases in which it was "neces-
sary" for Portuguese armed police "to travel across intervening
British territory ...in journeying from one part of Portuguese

India to another". Even in these cases, the Government of Bombay
were prepared to allow passage only on terms of reciprocity, i.e.
they recognized no right of passage binding upon them. That no
right of passage existed apart from the arrangement is emphasized180 REJOINDER OF INDIA (II59)
by the fact that the Government of Bombay, in accepting the
Portuguese suggestion, expressly stated (Indian Annex C. No. 53,
1,p. 463) that

"this arrangement does not extend to armed troops operating on
the frontier between Portuguese and British territory".
Furthemore, when the Portuguese authorities tried to rely upon
thiç arrangement as a justification for having despatched a military

force on a journey via Bombay without previously asking for
permission, the Government of Bombay, in a letter of the aznd
January, 1914 (Indian Annex E. No, 24, II, p. 314), insisted that
the arrangement referred
"to reciprocal arrangements relating to the passage of Police only
and not of troops otheBritish or Portuguese Governmentsthrough
intervening Portuguese or British territory".

341. Another matter over which the Reply passes in silence is the
agreement of 1920 between the Governments of Bombay and
Portuguese India "regarding the entry of British Police Officers
into Portuguese territory and vice versaJ(Indian Annex C. No. 56).
Reference to this agreement has already been made in paragraph 327
above. It is only necessary here to recall that the agreement is of
special significance, because it contains an express reservation of
certainrights of British police travelling through Marmagao ;sothat it
is clear that the two Governments meant to record in the agreement
any special rights recognized by both sides. In spite of this, there
isno mention of any special nght affecting passage between Daman
and the enclaves.

342. In this section of the Reply, the agreement of 1940 for the
passage of armed police over the Daman-Silvassa road (Indian
Annex C. No. 57)is also ignored. Reference is made to this agree-
ment in paragraph 171 of the Reply. The contentions there put
forward are answered in paragraphs 324-3527of this Rejoinder.

343. To complete the catalogue of omissions from this section of
the Reply, it is necessary to note that the Counter-Memorial sets
out, in paragraphs 174 and 176, a number of later incidents in
which the British authorities were asked to allow the passage of
Portuguese troops to and from the enclaves. Except a passing
reference in paragraph 193 of the Reply, the Portuguese Govern-
ment have nothing to say about these.

344. The Government of India submit that the arguments in the
Counter-Mernorial based upon the instances of passage of troops
and poLice between 1892 and 1947 are unshaken by paragraphs
179-180 of the Reply. This is the result both of the defects of the
arguments which those paragraphs contain and of their complete
failure to deal with the important matters mentioned in para-
graphs 337-343 above. In particular, it is inconceivable that the REJOINDER OF INDIA (II59) 181

Government of Portuguese India, if they had believed themselves
to possess special rights of passage between Daman and the en-
claves, would have entered into arrangements so restricted in their
termsas those of1913,192 a0d 1940 without any mention or saving
of such special rights.

345. The Portuguese Government return to the period 1892-1947
in paragraphs 193-19 of the Reply. In paragraph 193 they admit
that

"the obtaining oan administrative permit wasometimes required
during the Bntish period for the passage of police elements or
troopsbetween Daman and Nagar-Aveli".
In the face of the facts related in the Counter-Memorial, this
could hardly be denied; but the Portuguese Government contend
that it is only "a form of regdation and of control ofthe exercise
of" a right of passage. It is not inconsistent with the existence of a
right of passage, they argue, because the need for authorization
related, not to "transit in toto", but to "limited aspects of the

transit", and the Bntish authorities could not make a discretionary
use of the control and render communication with the enclaves
impossible. The requirement of a permit for passage shews, accord-
ing to them, only that the Portuguese right was not accompanied
by "imrnunities".
346. The Government ofIndia submit that a proper appreciation

of the factsis enough to disposeofthis argument. According to the
Portuguese Government, the requirement of a permit was only a
means of ensuring that each separate journey complied with condi-
tions which the Bntish authorities were entitled to impose. It
consisted of "case by case, examining whether or not the passage
can take place under the conditions claimed". It is necessary only
to look at the conduct of the parties to see that this isnot what they
were doing. When the Portuguese authorities wished to send troops
to or from the enclaves, they did not submit that, nor did the
British authorities inquire whether, certainconditions were satis-
fied. The correspondence consisted simply of a request in each case
that the troops be allowed to pass through British territory, and
an answer: cf. Indian Annex C. No.55,I pp, 469-471 I)~ian Annex
E. Nos. 25, 26,31, 32,33. Likewise, the various statements of both
sides set out in paragraph 337 above do not refer to the satisfaction
of conditions, nor is it possible to read into them the idea of a
conditional right of passage. The two Governments were at one in
regarding permission of the British authorities as absolutely
necessary before Portuguese troops could cross British territory,

and there was no suggestion that this permission was in any circurn-
stances bound to be granted. The conduct of both parties indicates
that the British authorities were indeed exercising a discretion, and
not merely granting a forma1 consent which followed automatically182 REJOINDER OF INDIA (II 59)
and inescapably upon the satisfaction of certain conditions. As to
the question of immunities, there is no indication whatever that
Portuguese troops when passing through British territory were

deprived of immunities. On the contrary,had there been any offence
committed on British territory by one member of those forces
against another, the Portuguese authorities, in conformity with
international law, would have objected strongly to any interference
by British police or British Courts.

347. It should also be observed that the Portuguese argument in
paragraph 193 of the Reply is another example of assumption of
that which has to be proved. In this paragraph, the Portuguese
Government assume the existence of a right of "transit intoio",
and go on to argue that control by pennit of "limited aspects of the
transit" is not inconsistent with it, This is putting the situation
which in fact existed back to front. As far as the historical facts and
the conduct of the parties are concerned, the existence of a right of
"transit in toto" is a pure assumption. The evidence shews only
that the parties corresponded from time to time about what the

Portuguese Government cd "limited aspects of the transit", and
always regarded those "aspects" as requiring permission, the grant
of which lay within the discretion of the British authorities. There
is no indication that they ever considered any such theoretical
concept as "transit in toto". It is plainly impossible to argue that,
because "limited aspects of thetransitJJ were subject to permission,
therefore "transit inîztoo Jas a matter of right.

348. In paragraph 194 of the Reply, the Portuguese Government
argue that it is unnecessary to consider whether the idea of recipro-
city influenced "the definition of conditions of entry into British
territor y" or "the conditions of access to the enclaves", because
"there, the transit claimed by Portugal is not in questionJJ.This
distinction between "entry into British territory" and "access to
the enclaves" on the one hand, and "the transit 'claimedby Portu-
gal" on the other, is, in the submission of the Government of India,
entirely false. "Entry into British territory"and "access to the

enclaves" together make up "the transit claimed by Portugal", and
to prevent either the entry or the access is neceçsarily to prevent
the transit. It would, no doubt, have been possible to impose
conditions on entry into British territory with an express provision
that they were not to apply to entry for the purpose of reaching the
enclaves. In the absence of such a provision, regulation of entry or
of access was ips oacto regulation of "the transit claimed by Portu-
gal". Since no example of such a provision has been quoted by
either side, it is idle for the Government of Portugal to argue that
the idea of reciprocity may have influenced conditions of entryinto
British territory or of access to the enclaves, but did not influence
"the transit claimed by Portugal". REJOINDER OF INDIA (II59) 183
349. The essence of a reciprocal arrangement is that each side
makes a concession in order to obtain a concession from the other.

Had Portugal been entitled as of right to send troops and arrned
police to and from the enclaves across British territory, there
would have been no reason whatever for her to make concessions in
order to obtain from the British authorities, aaconcession,permis-
sion for rnovements of troops and armed police including move-
ments to and frorn the enclaves. The constant reliance upon the
idea of reciprocity (e.g. paragraphs 32323, 325, 326,327, 332, 333,
and 340 above) was therefore absolutely inconsistent with the
existence of anysuch right as Portugal now clairns.
350. In paragraphs 181-18 5f the Reply, the Government of

Portugal discuss what they cal1 "the uniformity of the regulation
çovering the general case of entry into British territory and the
special case of transit between Daman and the enclaves". These
words themselves reveal that we are here confronted once more
with the Feiitio principii so charactenstic of the Portuguese argu-
ment. The special legal nature of the transit between Daman and
the enclaves, which it is for the Portuguese Government to prove,
is simply assurned. In paragraph 181,the Portuguese Government
go on to argue that this uniforrnity of regulation, it did exist, is
of no importance, because "the special case", unlike "the general
case", "implies that the Portuguese State has a permanent right to
have access to the enclaves". It is not at aU easy to see what
exactly is meant by the statement that the special case implies that
Portugal has a right. What is clear, however, is that heregain the
question whether there was a special case is being begged in the
same way as before, and the argument is consequently invalid.

351.There is also present (though almost concealed) in para-
graph 181 another attempt by the Portuguese Government to
escape frorn the consequences of the fact that, throughout the
British period, entry into British temtory for the purpose of trav-
elling to or from the enclaves and entryinto British territory for
other purposes were treated in exactly the same way. The Portu-
guese Government refer to "this uniformity, to the extent where,
by accident, it might have existed". The suggestion that the uni-
formity occurred "by accident" is quite unwarranted. Had there
been one set of regulations governing transit between Daman and
the enclaves, and another set governing al1other entry into British
territory, that might have shewn that the British authorities recog-
nized transit between Daman and the enclaves as constituting a

special case. Had the two sets of regulations then been the same in
their effect, it would have been possible to argue that the similarity
had occurred "by accident". In fact, however, the position was
quite different. There were not separate sets of regulations, but a
series of arrangements of which each applied to alientry into
British territory generally, distinction being made between entry REJOINDER OF INDIA (II59)
184
for the purpose of going to or from the enclaves andentry for other
purposes (e.g.paragraphs 323,327 and 340above). Thus, in each case
the uniformity arose, not from similanty between two sets of regu-
lations, but from the deliberate making of one arrangement to
govern al1 entry into British territory. Such uniformity cannot be
said to have existcd "by accident". (The same unwarranted sugges-

tion reappears in paragraph 192 of the Reply.)
352. The Government of Portugal next try to shew (in para-
graphs 182-187of the Reply) that the conditions governing "access
to the enclaves" were in fact different from those governing "access
to British territory". They contend that whereas European for-
eigners entering British India by land (including, as a general rule,
European Portuguese officials) were from 1935 onward required to
bear passports, this requirement was not applied to the Governor

of Daman and Portuguese officials in transit between Daman and
the enclaves until the end of 1953.They further contend that, even
after the requirement waç thus applied, the Rlinistry of External
Affairs of the Government of India empowered the District Magis-
trate at Surat, "to facilitate the Administration of the Portuguese
enclave of Silvassa, and as a very special case", to grant visas to per-
manent Portuguese European officialsofDaman and Silvassa,whereas
normally the District Magistrate had no authority to grant visas.

353. It is necessary to recall what the position would be, if these
Portuguese contentions were right as to these facts. There would
then be, on the one hand, evidence that throughout the British
period the same regulations governing troops and armed police
applied indifferently to entryinto British territory for the purpose
of transit to or from the enclaves and entry into British territory for
any other purpose. On the other hand, there would be evidence that
for a few years right at the end of the British period a special
concessionwas made, not for troops or armed police, but for officials.
(That the special arrangement was recognized to be a concession,
and not a matter of right, appears from the language of paragraphs
4 and 5of the note of the 18th January, 1954, from the Portuguese
Legation in New Delhi to the Ministry of External Affairs: Memo-
rial, Annex No. 39.1 It is, in the submission of the Government of
India, impossible to contend that this one concession, applying
only to officials, would outweigh in its effect the practice of con-
siderably more than a century in actual cases of troops and armed

police. It would be impossible to contend on the strength of this
indulgence, granted as a concession and for a comparatively brief
period, that transit between Daman and the enclaves was recognized
as a special casegiving risc to special legd rights. The same comment
may be made on the grant of authority in 1953 to the District
Magistrate at Surat to grant visas to permanent Portuguese Euro-
pean officials of Daman and Silvassa. This, too, was regarded by
the Indian authorities as a concession (cf. the Ministry of External REJOINDER OF INDIA (1159)
185
Affairs' note of the 23rd December 1953, paragraph 6, reference to
any "further concessions": Memorial, Annex No. 38). It is impos-
sible inthese circumstances to infer from the use of the words "as
a very special case" that the Indian Government recognized the
existence of speciallegal rights.

354. In paragraphs 186-187 of the Reply, the Government of
Portugal allege that transit of police and armed forces between
Daman and the enclaves was often subject to rules different from
those governing entry into neighbouring territory.The only example
which they quote is that of the alleged difference during the period

of the Treaty of 1878. Ithas already been shewn that during that
period there was, on the admission of the Governor General of
Portuguese India himself,no difference between the rules governing
transit between Dajnan and the enclaves and those governing entry
into other parts of BritishIndia (cf. paragraphs 288-296 above).

355. In paragraphs 189-191 of the Reply, the Government of
Portugal refer to certain incidents of the pre-Treaty period. The
first two are the incidents of 1826and 1849,mentioned in paragraphs
21-22 of the Mernorial; to these are added incidents of 1830 and
1857, now mentioned for the first time. With regard to the two
former, the Portuguese Government dismiss the Indian comment
(Counter-Memorial, paragraph 177)that they "belong to the distant
past" with the remark that this only shews that the Portuguese
have enjoyed for a long time the right now claimed. This, however,
is to miss the point ofthe Indian comment. Portugal can succeed in
this case only by establishing a right existing today.It if be true-
as, in the submission of the Government of India, it is-that since
1879 (when the Treaty came into force) Portugal has never either
exercised or claimed a right to send troops or armed police into, or
across, British (or Indian) territory without permission, it would
not avail Portugal toshew that before 1879 'the positionmay have
been different. In fact, as is shewn in paragraph356 below, the inci-

dents quoted in the Reply do not shew that even before 1879 the
position was as the Portuguese Government represent it to have
been. -4 further criticism of the Counter-Memorial is made in the
footnote to paragraph 189 of the Reply, where it is suggested that
the object of the expedition of 1826 was not the punishment of the
Raja of Dharampur. As to this, it is sufficient to recall that the
Governor of Daman, in his letter of the 7th March, 1826, to the
Political Agent at Surat (Memorial, Annex No. 14). said he had
ordered the arming of 500 villagers,
"until the Raja gives me suitable satisfactionfor the injury
suffered".

356. In fact, kowever, there is nothing in the incidents of 1826,
1849,1830 and 1857 tosupport the Portuguese case. The Portuguese
Governrnent rely upon them as shewing that at that time transitI86 REJOINDER OF INDIA (II 59)

between Daman and the enclaves took place without any permission
of the British authorities,and was subject to rules different from
those governing entry into British territory generally. A11four
examples seem to be examples of entry into .British territory for
the purpose of transit to the enclaves, and there is nothing in-them.
to suggest that entry into British territory for other purposes was
subject to any different mles. As to the absence of permission
granted by the British authorities, it has to be remembered that

before 1879 there was a reciprocal arrangement under which British
and Portuguese troops and armed police were allowed to enter
Portuguese and British territory respectively, and this arrangement
applied to the territory between Daman and the enclaves just as
it applied to other British territory (cf.paragraph 323 above). There-
fore, if it be the fact that inhese four incidents mentioned in the
Reply Portuguese troops entered British,territory without previous
permission, the reason was not that they were entitled. to do su
under some special right, butthat they were entitled to do so under-
the reciprocal arrangement. The reciprocal arrangement came te
an end in 1879, so on this view the four incidentshave no relevance
to the situation today. It is interesting tu note that one of the.
documents relating to the incident of 1826 itself contains evidence
confirming the existence of the reciprocal arrangement at that
time. The document is that of the 5th March, 1826, containing the.
Governor of Daman's instructions to the commander of the force
sent to Nagar Aveli (Reply, Annex No. 81) .mong the instructions.

is thefollowing :
"You will oppose no obstacleto the passage of persons in the
serviceof the EnglishCompany."

The reference here is clearly to passage through Portuguese.
territory. The document therefore shews that in 1826 persons in
the British service were entitled to pass through Portuguese terri-
tory, and this can only have been by virtue of the reciprocal.
arrangement.
357. Finally, it may he observed that the incident of 1857 is,
presented in the Reply in such a way that very little weight could.
in any case be attached to it. Only secondary evidence is produced,
consisting of an extract from a book published in 1904, nearly
fifty years after the event. There is no reference to any contem-
porary document, and even in the passage quoted there is only the
barest possible reference to the despatch of an armed force.

358. Paragraph 195of the Reply begins the section containing the.
Portuguese arguments about the transit of goods between Daman
and the enclaves. The Portuguese Government ljegin by remarking,
in paragraph 196, that passage of merchandise between Daman andthe enclaves and vice versa took place regularly during the British
period. They Say that the necessary communications and connec:
tions were maintained in this field also. There is no doubt that
passage of goods between Daman and the enclaves did go on
throughout the British period, but subject al1the time to control,
and on occasions even to prohibition, imposed by the British
authorities. Ithas already been shown in paragraph 278 above, in
connection with passage of troops and police, that the mere fact of
passage lends no support to the Portuguese case. It is necessary to,
look further, and to see the reasons why the British authorities
allowed the passage and the terms upon which they allowed it.

These observations apply equally to the passage of goods. There is,
in the submission of the Government of India, no evidence whatever
in the documents produced to show that the Government of Bom-
bay ever regarded themselves during the British penod as obIiged
to allow the passage of goods as a matter of right. If, as the Portu-
guese Government contend, "the necessary communications and
liaison" were majntained, the reason for this was not that they
were "necessary" to the Portuguese, but that they were unobjec-
tionable to the British.

359. The best evidence of this is the fact that when traffic in
particular goods waç for any reason objectionable to the British
authonties, they banned it. The Portuguese Government atternpt
to deal with these cases of prohibition in paragraphs197 to 203 of
the Reply. They first observe that the restrictions were only two
in number, relating respectively to salt and to country liquor and
materials from which that Iiquor was made. This is asomewhat

misleading dassification, since there were in fact not two prohibi-
tions but scven. In order to prevent the distilling of country liquor,
the British authonties prohibited by separate orders and on differ-
ent occasions the entry into British territory of mhowra flowers,
dates,jagri, molasses and saccharine as well as the entry of country
liquor itself. These prohibitions were made at various times between
1892 and 1924. (To the documents on this subject contained in
Indian Annex E. Nos. 15-23 should. be added those in Indian
Annex F. No.57.)It may be true to observe, as the Portuguese Gov-
ernment do in paragraph 197 of the Reply, that it is only an
extremely limited nder of objects the passage of which was
ever prohibited in this way, but that does not affect the significance
of the prohibitions which were imposed. What is important is ,the
fact that prohibition was possible, not the frequency with which it
was imposed. The significance of these instances is that the British
authorities did resort on a number of occasions to prohibition and
the Portuguese authorities,although very indignant when this was

done, never cornplained that any legal right of theirs was being
infringed (cf.ounter-Memorial, paragraph 163). In paragraph 198
of the Reply, the Govemment of Portugal argue that any effect REJOINDER OF XNDIA (II59)
188
upon economic connections between Daman and the enclaves was
not the object of these prohibitions, but arose only by reason of
"contingencies of an administrative nature". The meaning of this
is apparently the following: Some sort of system of control was
needed in order to ensure that goods passing into Daman without

payment of customs duty were indeed the produce of the enclaves
and not the produce of neighbouring British territory; for this pur-
pose a system of certificates was observed for long periods; this
system ultimately broke down and no substitute could be devised;
it was in those circumstances that prohibition was imposed; and
from this the Portuguese Government conclude that it was imposed
with the desire of "respecting", rather than the desire of "affecting",
transit between Daman and the enclaves.

360. The Government of India subrnit that this argument is
defective at every point. In the first place, it was never the general
rule that produce of the enclaves was allowed to enter Daman free
of British export duty. This was a concession which from the very
first days of British rule the Portuguese repeatedly tried to obtain.
They were from time to time (i.e. from1819 to 1848 and from 1861
to 1879) granted the privilege of introducing to Daman free of
customs duty articles produced in the enclaves and intended for
use in Daman, if accompanied by certificates çhowing their origin.
This privilege never extended to al1goods produced in the enclaves
generally, During the period of the Treaty (1879-18gz), no duties
were levied. After 1892 no exemption ever applied in the British
period to anything but rice, and even as regards rice the concession
was abolished in 1895 and never renewed during the British period.

It is, therefore, inaccurate tosuggest that the prohibitions were a
development of a general system of exemption from duty.
36r. Consequently, it is not correct historically to Say that the
prohibitions were imposed when the system of certificates broke
down. After 1892, i.e. in the period of the prohibitions, certificates
were never applied to any product but rice, and rice was never the

subject of prohibition. Certificates finally ceased to be used in
1895, and most of the prohibitions were imposed long after that.
Th? prohibitions were imposed on certain goods, not because the
British authorities were willing to allow traffic in those goods
provided they were genuine products of the enclaves but were
unable to satisfy themselves that the traffic was, in fact, confined to
such products, but because for the protection of their own revenue
the British authorities were unwilling to allow traffic in those goods
at all.

362. Finally, the Governrnent of India are unable tounderstand
how, even if the Portuguese premises were to be granted, the conclu-
sion which they draw would follow, The desire and intention of the
British authorities in imposing the prohibitions was to stop al1 REJOINDER OF INDIA (II 59)
1~9
trafic in the goods concerned over the border. There is nothing to
suggest that they drew any distinction between goods in transit
between Daman and the enclaves and other goods crossing the
border. It is therefore irrelevant to Say that they had no desire to

affect transit between Daman and the enclaves. The fact is that they
did not hesitate to affect this transit so far as it was necessary to do
so in order to perfect the prohibition.

363. The Government of Portugal suggest in paragraph 201 of the
Reply that their argument is supported by the incident of dates.
After the prohibition of the import of dates from Portuguese terri-
tory (Indian Annex E. No. x8),the British authonties made a con-
cession allowing travelIers frorn Daman to Nagar Aveli to take tvith
them I lb. of dates per head for their persona1 consumption on the
journey (Indian Annex C. No. 49). This shows, according to the
Portuguese Government, that the British authorities recognized
the particular character oftransit between Daman and the enclaves
and did not intend to affect that transit by the prohibition. This
suggestion is entirely unjustified. The dates which the concession

allowed to be imported into British territory were dates to be
consumed on the journey. In other words, the only reason why they
were allowed to be imported was that they were to be consumed in
British territory and were never to reach Nagar Aveli at dl. Thus,
it was precisely because they were not in transit from Daman to
the enclaves that these very smalI quantities of dates were excepted
from the prohibition. Quite apart from this, the concession applied
only to quantities of dates not exceeding I lb. per head in the
possession of individual travellers. The export from British India
into Nagar Aveli of larger quantities of dates remained absolutely
prohibited. The incident, therefore, provides no justification for

the suggestion that the prohibition of dates was not intended to
affect transit between Daman and the enclaves.

364. Such are the particular defects of the Portuguese argument
in paragraphs 199 to zo~ of the Reply. Quite apart from these,
however, the Government'of India submit that it is impossible to
expIain away the prohibitions by reference to the supposed motive
for their imposition. It makes no difference whether they urere
imposed for administrative reasons or for any other reasons. Where
a right of passage over certain territory exists, the owner of that
territory cannot justify an interference with the right by saying
that he is interfering for a particular reason. His duty is simply to
allow the passage. If he is entitled to interrupt the passage and to
forbid the transit of certain types of goods, that can only mean that
a nght of passage does not exist. Thisis the conclusion to be drawn

from the prohibitions which were imposed bythe British authorities.
365. Finally, inparagraphs 202 to 203 of the Reply, the Govern-
ment of Portugal refer again to the limited scope of the prohibitions.

14 REJOINDER OF INDIA (II 59)
=go
They Saythat the right which they claim is only a nght to maintain
such contact between Daman and Nagar Aveli as is necessary for
the exercise of their sovereignty, and the power to forbid the transit
of certain categories of goods for special reasons is only part of the
power of regulation belonging to the sovereign of the intervening
territory. It is difficult to see how this argument can have any

relevance to the transit of goods in general, It is the passage of
troops, police and officiais, not the passage of merchandise, which
rriight be said to be necessary for the maintenance of Portuguese
sovereignty in the enclaves. In paragraph 202 it is suggested that
the object ofthe transit was to assure"the liaisons required between
these parts of Portuguese territory from the economic point of
view". However, it is clear that the prohibition of the transit of
mhowra flowers and other articles for distilling country liquor was
of the gravest economic consequence to the enclaves; yet the
Portuguese authorities, although protesting againçt the prohibi-
tions, never suggested that their rights were being .infringed (cf.
Counter-Mernorial, paragraphç 154-163 Indian Annex' C. No. 44,
1, pp. 406, 415).

366. It is therefore difficult, inthe submission of the Government
of India, to see how it can be argued in connection with transit of
goods that Portugal possessed what is called in the reply a "global"

right. It would be possible to understand a nght confined to certain
goods, but there is no suggestion of this in the Portuguese pleadings.
If not limited in this way, a right of transit of goods can only be
a general right of transit, and a general right is quite inconsistent
with a power to prohibit at discretion the transit of any kinds of
goods. For this reason, the effect of the prohibitions cannot accu-
ratelp be described as falling within the field of regulation.

367. Between paragraphs 204 and 209 of the Reply, the Portu-
guese Government argue that both the British and the Portuguese
authorities recognized in connection with the transit of goods "the
necessityand the speciaEcharacterof the situation". They quote a
number of documents in which, in one way or another, the remark
was made that goods passing between Daman and the enclaves had
necessarily to cross British territory. An examination of these
documents shows that in each case the reference was simply to the
geographical fact, and no attempt was made in any ofthe documents
to base upon this fact any legal right.

368. The first document quoted inthis connection is a letter of
the 11th November, 1818, from the Governor of Daman to the
Governor of Bombay (Indian Annex C. No. 33, 1,p. 295).With
regard to this letter, the Portuguese Government attempted to make
thissame point as in paragraph 157 of the Reply, and it is enough
to refer here to the answer contained in paragraph 312 of this REJOINDER OF INDIA (II 59)
I9I
,Rejoinder. The next document mentioned is the letter of the 27th
May, 1892, from the Governor Generai of Portuguese India to the
Governor of 'Bombay (Indian Annex C. 1\704., 1,p.378).This was
a letter in which, after the expiry of the Treaty 1878, the request
was made that all produce of the enclaves should be allowed to
pass through British territory to Daman free of duty. It is true that
in support of this request the Governor-General used the words

quoted in paragraph zog of the Reply, but later in the letter he
described what he was asking for as "this condescension on the part
of the British Authonties". Moreover, he offered to give in return
"an' equal exemption from duty of products passing from British
territory", and pointed out that British trade in Goa was not
subject to any transit dues when passingover the Marmagao railway.
It is thus clear that the Governor-General was not attempting to
claim any nght on the basis of necessity, for he himself described
what he was asking for as a "condescension", i.e. an indulgence.
Furthermore, had he been trying to insist upon a right, he would
not have offered a reciprocal concession. That the British authori-
ties did not recognize the existence of any right appears from the
fact that they refusedractically the wholeofthe Governor-General's
request, granting exemption only to nce produced in Nagar Aveli.

369. The next document quoted bythe Portuguese is the letter of
the 6th September, 1861, from the Secretary of State for India to
the Governor of Bombay (Reply, Annex No. 86).This letter referred
to the exemption of customs duty which was granted in 1861 to al1
produce of the enclaves passing through British terrifory for
consumption in Daman. The Portuguese Government seek to rely
upon the statement that this appeared to be "a proper measure".
It is only necessary to observe that a proper measure is not the
sarne thing as a measure imposed by legal requirement, or smeasure
which can be claimed as of right. The Secretary of State may well
have meant no more than that the measure was proper because it

did not harrn British interests and was a means of obliging a
friendly country.
370. In paragraph 207 of the Reply, reference is made to the
cornplaint put forward in 1824, that certain goods produced in
British territory were prevented from entering Daman. The Portu-
guese Government suggest that similar goods produced in the
enclaves were at the same time allowed to enter Daman, and they
Say that this would not have been so had there not been a right of
passage. An examination of the incident shows that the explanation

was in fact different. The only thing of which the exportation to
Daman had been forbidden was grain, and this prohibition had been
imposed because there was in Daman a similar prohibition against
exportation to British territorIn other words, the British order was
a retaliation (see the letter from the Acting Collector in Northern
Concan of the 1st January, 1825, Indian Annex C.No. 33,I, p. 309)- =clz REJOINDER OF INDIA (II59)
Goods produced in the enclaves entering Daman had necessarily,
before reaching the Daman border, been exported from the enclaves
into British territory. Thus, these were goods which had not been
subjected to any prohibition of export into British territory, and

there was therefore no reason in their case why export out of
British territory should be prohibited in retaliation.Itthus appears
that, if a distinction was being made between produce of the
enclaves and produce of British territory, the reason for this distinc-
tion had nothing to do with any right of passage.
371. In paragraph 208 of the Reply reference is made to corre-
spondence in 1904, as a result of which the customspost at Kunta
was opened for the passage of Portuguese Government storesbound
for Nagar AveIi on days on which it was closed for general purposes
(Indian Annex C. No. 47). This arrangement was obviously made
as a matter of friendly concession, and there is no suggestion of any
right in the letter asking forit. Itwas not, moreover, a concession

peculiar to the Portuguese Government, for it seems thatthe luggage
of private travellers waç also passed through the post on these same
days. In other words, arrangements were made for the convenience
of various parties, including the Portuguese Government. There are
no inferences to bedrawn from the fact thatthe Portuguese Govern-
ment stores, for which the arrangement was made, were those
"bound for Nagar Haveli", for no Portuguese Government stores
couId have passed through this post except those bound for the
enclaves.
372. In paragraph 209of the Reply the Government of Portugal
refer to certain other documents in which reference is made to the
necessity for passing over British territory on the journey from

Daman to the enclaves. In none of these documents is there any
suggestion that this necessity resulted in the existence of a right.
In al1 of them it is mentioned in support of a request for an in-
dulgence.
373, Paragraphs 210-212 of the Reply are devoted to the sug-
gestions which were made at various times, that a strip of land
joining Daman and the enclaves should be transferred by the
British to the Portuguese by way of sale or by way of exchange.
The Government of Portugal argue that a right of sovereignty over
such a strip would have been greater than a right of passage, and
the right of sovereignty would not therefore have been suggested

unless they had already possessed the right of passage. This argu-
ment, in the submission of the Government of India, has no justi-
fication. When the territory of one sovereign is divided into two by
intervening territory of another, it is perfectly possible for the
sovereign of the divided territory to ask for, or the sovereign of the
intervening territory to offer, a strip of land joining the two parts
of the divided territory, even if no right of passage between these
two parts already exists. Ifa proposa1 is made to grant such a strip, REJOINDER OF INDIA (II59) I93
therefore, it by no means follows that a right of passage is already
in existence. Indeed, had Portugal already possessed a right of

passage, that 'would have met any request lvhich the Portuguese
Government might have ever put forward, and there would have
been no need for the sale or exchange of a stnp of territory to be
suggested. From this point of view, the fact that such exchange or
sale was suggested on more than one occasion indicates rather that
no right of passage existed.

374. The Government of Portugal also suggest, in paragraph 210
of the Reply, that, the cession of a strip of territory not being
acceptable to the British Government, the more moderate sugges-
tion of a right of transit wouldthen havè been suggested, if it had
not already existed. Here again, in the subrnission of the Govern-
ment of India, the argument is quite illogical. Cession of territory
and the grant of a right of passage are two different ideas. If one of

them is suggested and rejected, it does not necessarily follow that
the other must be suggested in turn. The British Government would
naturally not have been anxious to grant a right of transit, and so
there would have been no reason for them to suggest such a right.
As for the Portuguese authorities, having failed to obtain cession of
a strip of territory, they may well have thought that they would
only make the existing situation worse if they were then to ask for a
right of transit and have that request also refused. Furthemore,
extensive smuggling from Daman into the adjacent territories was
a constant source of anxiety to the British authorities (and haç been
in recent years to the Indian authorities). This anxiety, and a fear
of making smugghng easier, were largely responsible for the refusa1
of the British Government to cede a strip of territory joining

Daman to the enclaves: cf. the Collecter of Surat's report of the
2nd June, 1860, and notes upon it (Indian Annex F.No. 58). For,
the same reason the British authorities would have been rnost
unlikely to propose the grant of a right of passage, for that, too,
would have produced better opportunities for smuggling. The
Portuguese authorities knew very well both that the smuggling
was going on and that in consequence the British authorities
adopted a strict attitude about the transit of goods. From this they
may well have concluded that to ask for a right of transit would be
useless. The same considerations would also have been applied at
later periods, for the smuggling has always gone on: cf. Counter-
Memorial, paragraph 155 and letter of the 27th February, 1901,
from the Government of Bombay to the Government of 1-ndia
(Indian Annex F. No. 59).

375. The Government of India therefore submit that no inference
relevant to these proceedings can be drawn from the abortive
negotiations for cession of a strip of temtory uniting Daman and the
enclaves.I94 REJOINDER OF INDIA (II 59)

376. In paragraphs 213-215 of the Reply, the Government of
Portugal attempt to build an argument on certain incidents con-
cerning the roads between Daman and the enclaves. These incidents,
they Say, reveal "the recognition of our right of access to the
enclaves". The history of these roads is only very partially outlined

in the Reply. When it is more fully investigated, the Portuguese
argument iç seen to be without foundation.

377. The Portuguese Government first remark, in paragraph 213
of the Reply, that there is only one road joining Daman to the
enclaves, that running through Vapi. This road, they Say, was
constructed between 1863 and 1868. This latter statement is inac-
curate. The road was in fact built in two parts. The section from
Daman to the railway station at Vapi was built between the dates
mentioned in the Reply. The section from Vapi to Dadra and
Nagar Aveli, however, was built only between the years 1899 and

1902. The contemporary documents show that when each of these
sections of the road was built neither the Portuguese nor the British
authorities had in mind communication, still less any right of
passage, between Daman and the enclaves. In bath cases the
object was to secure communications with the railway at Vapi. It
appears, moreover, that in the construction of the first section of
the road, that between Daman and Vapi, the British authorities

were concerned as much with the interests of the inhabitants of
British territory as with those of the inhabitants of Daman. Refer-
ence is made in the following paragraphs to the contemporary
documents which establish these facts, and from these it follows
that the construction of the road had nothing to do with any idea
of a right of passage between Daman and the enclaves l.

378. The original suggestion for the building of the road between
Daman and Vapi station did not come from the Portuguese Govern-
ment, but from a number of residents of Daman. They sent a
petition on the 5th August, 1862, to "the Governor at Surat",

pointing out the desirability of building a road connecting the port
of Daman with the railway station at Vapi for "industrious and
commercial purpoçeç" (Indian Annex F. No. 60). Having received
this petition, the Agent for the Governor at Surat wrote on the
2nd February, 1863, to the Governor of Daman (Indian Annex
F. No.60), asking various questions about the facilities for the export
of cotton from the port of Daman, It is thus clear that, in the eyes

of the British authorities, the advisability of building the road

l In footnoteIon page492 of the Repl[ Vol.II], the Government of Portugal
say that the road extends in Nagar Avasfaras Canoel, and proceed to give the
comparativelengthsof thewhole road and of the part in Indian terIt should
Vassona (Reply, AnnexNo. 95),so that the figures given in the footnote apply only
to recent yearsandnot to the periodinwhich the two sections formitheroad
between Daman and the enclaves were built. depended not .solely upon the advantage to traders in Daman of
having a connection with the railway, but also from the advantage
to residents inthe British territory of having a new outlet for their
cotton.Satisfactory answers were given to these questions, and
on the 25th June, 1863, the Governor General of Portuguese India
wrote to the Governor of Bombay agreeing to çhare the cost of
building the road (Indian Annex P. Mo. 60).

379. The arrangement ~Itirnately made was that each Govern-
ment should pay for the required land within its own territory, and
the Government of Bombay should build the whole of the road, the
Government of Portuguese India paying for,the portion lying within
Portuguese,territory (Indian Annex F. No. 60). The road was in
fact completed, aftervarious vicissitudes, in 1868. Thereafter each
Govemment was responsible for the maintenance of the part lying
within its territory.

380. The Government of Portugal quote certain occasions upon
which the Portuguese authorities açked the British authorities to
repair portions of the road in British territory, and the British
authorities consented to do 50.The reason for this, according to
the Government of Portugal, \vas that "that road affected the
exercise of Our right of passageJ'. The Government of India submit
that this conclusion by no means follows from the instances quoted.
The simple fact that the Portuguese used the road, and it was of
importance to them, sufficesto explain the requests which theymade.
That the British acquiesced was not only a reasonable act in the
interests of British users of the road, but also an obvious way of
obliging a friendly State. There is no need at all to postulate a
right of passage in order to explain these incidents of repairs. This
view is confirmed by the fact that the British authorities dso
requested the Portuguese authonties to repair the part of the road
lying in Portuguese territory, and, the Portuguese authorities
thereupon did the repairs. This ernerges frorn certain correspon-
dence between September and November, 1876 (Indian Annex F.
No. 61).The Portuguese Government do not, presumably, contend

that the British had a right of passage over this road through
Portuguese territory,
381. The other section of the road, mnning from Vapi to Dadra
and Nagar Aveli, was built between xgoo and 1902. Before this,
there existed along its course a track, mentioned in the Governor-
General of Portuguese India's letter of the 7th February, 1900
(Reply, Annex,No. go).That letter, however, was not the beginning
of the correspondence. On the 18th October, 1899,the Governor-
General of Portuguese India wrote to the Governor of Bombay,
asking whether the Government of Bombay was contemplating the
construction of roads from Lavacha (in British territory between

Dadra and ,Nagar Aveli) and Dungra (in British territory on the
western boundary of Dadra) .to ,Vapi. The Govemor of Bombay REJOINDER OF INDIA (II59)
~96
answered on the 19th January, 1900, that a fairly rnurumed and
drained road already existed between Vapi and Dungra and a cart
track thence to Lavacha, and no additional work was then contem-
plated (Indian Annex F. No. 62).It was in ansurer to this letter that
the Governor-General of Portuguese India wrote his Ietter of the
7th February, 1900. Instructions for the building of the road from
Vapi to Lavacha were duly given, the portions in British temtory

being built by the Government of Bombay and that in Portuguese
territory by the Government of Portuguese India. The whole road
was completed by the end of 1902 (Indian Annex F. No. 62).
382. The Governor-General of Portuguese India's letter of the
7th February, 1900 contains a passage showing quite clearly that
the doing of repairs by the British Government in response to
requests by the Portuguese Government does not indicate that any
right of passage existed. This is the passage in which, in support of
his request for the construction of a road between Lavacha and
Vapi, he points out that the British authorities had recently asked
for repairs to be done to the road from Kanvar to Marmagao (i.e.

a road leading from British India into Goa), and the Portuguese
Government had complied with the request. It is interesting to note
that in fact the British authonties on several riccasions pressed
the Portuguese authorities to repair the roads leading from British
India into Goa, and the Portuguese authorities did the repairs. There
is, of course, no suggestion that the British authorities enjoyed any
nght of passage over these roads. It is therefore clear, from these
instances, that a request by one Government to the other, for the
repair of a road in the latter Government's terntory, does not
indicate the existence of any right of passage in favour of the former
Government .

383. One road leading from British India into Goa was that
running by way of the Tinnai Ghat. Agreement for the building
of this road was reached between the two Governments in 1859.
About one third of it lay in British territory and two thirds in
Portuguese, but the two Governments agreed to share equally the
cost ofits construction (Indian Annex F. No. 63). In 1881the Govern-
ment of Bombaypointed out to the Governor General of Portuguese
India that the portion of the road within the Portuguese boundaries
was in a neglected condition, and asked him to have it repaired
(Indian Annex F. No. b4j.

384. Another road leading from British India into Goa waç
that from Kanvar to Marmagao. On the 30th May, 1891, the Dis-
trict Judge of Kanara wrote to the Secretary to the Government of
Bombay, pointing out that mails from Bombay to Kanara passed
dong this road, and various works needed to be done upon it in
Portuguese terntory. The Governor of Bombay wrote to the Gover-
nor General of Portuguese India on the 8th July, 1891, asking him
to take these works in hand, and on the 15th July, 1891,the Gover- REJOINDER OF INDIA (II 59)
I97
nor-General wrote back saying that he Ras considering "your just
observations regarding the completion of the works" (Indian
Annex F. No. 65).The works were in fact camed out by May, 1898
(Indian Annex E. No. 65).

385. From this correspondence two features of great importance.
emerge. First, the Governor-General of Portuguese India (see hic;
letter of the 7th February1900: Reply, Annex No. go) regarded the
construction of a road between Vapi and the enclaves as a suitable
return for the road which had been made between Karwar and
Marmagao. Thus he did not rely on any right of transit in support
of his request for the road between Vapi and the enclaves, but
treated that road as equivalent to the road at Goa, over which no
right of passage has ever been alleged to exist. Secondly, the
British authorities successfully requested the Portuguese authorities
to repair the road Ieading into Goa in exactly the same way as the
Portuguese authorities successfully requested the British authori-
ties to repair the roads linking Daman and Lavacha to Vapi.

There is no suggestion that the British possessed any right of transit
over the roads in Goa, and therefore no reason to infer that the
Portuguese possessed any right of transit over the roads leading
to Vapi.
386. Finally, the Government of Portugal, in paragraph 214 of
the Reply, quote a letter in which the Government of Bombay
offered to build another road between Daman and Nagar Aveli, if
the Portuguese Government would pay for it. They argue that this
suggestion amounts to an admission of their right of passage. In the
subrnission of the Government of India, the explanation of this
suggestion is quite different and appears from the letter itself.

Immediately before making thiç suggestion, the Government of
Bombay pointed out in the letter that the road would be of no
value to them. It is quite clear that this is the reason why they were
willing to build it, to obligea friendly country, but onIy on condition
that the Potiuguese paid. No inference about the existence of a
right of passage can be drawn from this. Itmay also be noted that
in 1916 the Government of Bombay considered offering to the
Government of Portuguese India a subsidy for the proper upkeep
of that part of the Karwar to Marmagao road which lay within
Portuguese temtory. The Portuguese Government would not,
presurnably, suggest that this indicates that the Government of
Bombay believed themselves to possess s right of passage over that
road (Indian Annex F. No. 66).

387. In a footnote on page gg of the Reply, the Government of
Portugal refer to an occasionupon which the Government of Bom-
bay offered to buiId at their own expense a road through the south-
ern part of Nagar Aveli on condition that they should have free
passage over it.They argue that the two ideas, payment of expense
and right of passage, which in that case were expressly connected,were also connected,. though not expressly, in 'the case mentioned
in paragraph 386 above in which the British authorities offered to
build a road atthe Portuguese expense. This is only another occa-
sion on which the Portuguese Government construct an argument
on the assumption thatthe right of passage which they claim existed.
The correct inference to be drawn is the reverse. Since the British
Government, when offering to pay for a road in Portuguese terri-
tory, thought it necessary expressly to stipulate for a right of pas-

sage, the absence of such a stipulation, in the case in which they
offered to build a road at Portuguese expense, shows that no right
of passage in favour of the Portuguese was then intended.
388. One final incident concerning roads may here be mentioned.
In 1936 the PortugueSe Government was building a road from
Gobari .to Kerdi, across the southern part of Nagar Aveli. On the
2nd January, 1936 the Chief of the Cabinet wrote to 'the Chief
Secretary of the Government of Bombay, Political and Reforms
Department, asking if this road might be extended at its western
end across British territory,ço as to join the road from Bombay to
Surat. The Government of Bombay refused to entertain this sugges-

tion, partlybecause the Portuguese authoritieshad refused to allow
them to build aroad through Nagar Aveli in 1930 (cf.paragraph 387
above), and partly because they feared that the suggested road
would enable timber merchants in Portuguese territory to compete
more efficiently with timber merchants in British territory (Indian
Annex F. No. 67). This incident shows once more that the British
attitude to roads giving communication to the enclaves was govern-
ed by considerations of reciprocity and self-interest, and not by
any idea of legal rights possessed by the Portuguese.
389. In paragraph 216 of the Reply, the Portuguese Govern-
ment attempt to show that the history of the fiscal arrangements

affecting Daman and the enclaves is "irrelevant as to the right of
tra.tzsi2itself". The Indian Government submit that this argument
entirely overlooks the real effect of the fiscal arrangements. The
fact is that goods passing from Daman to the enclaves appear al-
ways (with insignificant exceptions) to have been subject to'British
duty,and goods passing from the enclaves to Daman were subject to
British duty subject to certain exemptions atcertain periods, which
exemptions never applied after 1895 to anything but rice. For the
greater part of the British period, therefore, rnost goods passing
between Daman and the enclaves were subject to British duty. The
effect of the imposition of this duty was that the goods were not
allowed to cross British territory unless theduty was paid. In other
words, the imposition of the duty was a conditional prohibition of
the passage ofthe goods. It is for this reason that, in the submission
of the Government of India, the imposition of the duties was quite
inconsistent with any right of passage. The Government of Portughl
suggest,in paragraph 216 of the Reply, that theirright wasrespect- REJOINDER OF INDIA (II59) I99
ed- so long as transit in fact took place, with or without immunity, '
and sovereignty over the enclaves was exercised. The Government
of India reply once more that; for the reasons given in paragraph 278
1
above, the mere fact that transit took place and Portuguese control
over the enclaves was maintained does not show the existence of
any nght.

390. In the part of the case concerned with the history of the
fiscal arrangements, the dispute arises from the inferences to be
drawn from the facts. The submissions of the Government of India
aboutthis are set out in various places in the Counter-Memorial (see
particularly paragraphs 126, 127, 131, 152 and 163)~and in para-
graph 389 above. As to the facts themselves there is here Little
dispute, and it is necessary only to rnake a few comments on para-
graphs 217-226 of the Reply, in which the Portuguese Governrnent
deal with this fiscal history. The Portuguese Government refer first
to the position as it was before the conquest of the Marathas by the

British. The submissions ofthe Indian Government about the nature
of the Marathas' arrangements, and the circurnstances in which the
British authorities after 1818 allowedthose arrangements to contin-
ue, have been made in paragraphs 299-31 3bove. It is there shown
that the British adopted this attitude not because they conceived
themselves to be obliged to do so, but purely as a matter of conces-
sion to the Portuguese. The Portuguese Government now admit, in
paragraph 217 of the Reply, that "the Treatyhad not been explic.it"
about any exemption of customs duty. They Saythat the Governor
of Daman's letter of the 11th November, 1818 (Indian Annex C.
No. 33, 1, p.295) "has already related al1this". In fact, the Gover-
nor stated in paragraph z of that letter that "it was stipulated by
one of the articles of the said Treaty" that products of Nagar Aveli
transported to Daman should be free of duty. Itis clear, therefore,

that the Governor of Daman waç then making his claim on a basis
which the Government of Portugal now admit to be unjustified. The
letter written by the Collector of Surat on the 14th April, 1819
(Indian Annex C. No, 33, 1, p. 300)~upon which the Portuguese
Government also rely, does not in reality give them any support.
That letter shows merely that the British authorities allowed the
arrangement prevailing in the last days of Maratha rule to continue.
It contains nothing to show either how that arrangement arose, or
that the British allowed it to continue as a matter of obligation
rather than as an indulgence. In paragraph 218 of the Reply, the
Portuguese Government refer to what they allege to have been
sanads of permanent character issued. by the Peshwa. They corn-
plain that the Indian submission that these documents "were
obtained from minor Maratha officiaias a result of bribe or inti-

midation" is "entirely gratuitous", The Indian submission is not
gratuitous, but is based upon facts set out in paragraph III of the
Conter-Mernorial. The Indian Government submit that "a simple REJOINDER OF INDIA (II59)
200
reading of the texts" does not show these documents to be of a
permanent nature. Reference may also be made to the submission
on this point set out in paragraph 308 of this Rejoinder.

391. After setting out the different periods between which
exemptions subject to certificates were granted to goods passing
from the enclaves to Daman, the Portuguese Government (in
paragraph zzo of the Reply) add the following wordç in italics:
"it should be noted that-even though the Indian Government does
not mention it-the same régime wasagain applied for the products
of the Pragana by an Accord dating of 1944-19 4A5nnexes 97-99)".
The arrangement to which reference is here made was quite different
from the earlier arrangements for exemption from duty subject to
certificate, and was concerned not with customs duty at al1but
with wartime control of the movement of goods. When it is properly
investigated, it gives strong support not to the Portuguese, but
to the Indian case.

392. The story of the incident is this.1944 the British author-
ities imposed a total prohibition on the import of any commodity
into Daman from the surrounding British territory. On the 30th
September, 1944, the Governor of Daman wrote to the Collector
of Customs and Salt Revenue at Bombay, saying that these rnea-
sures had caused "a terrible upheaval in the daily life" of the people
of Daman. He asked that facilities might be given for the import
of any commodity for persona1 use (Indian Annex F. No. 48). The
Government of Bombay offered to allow the export of rice and
other local products from Nagar Aveli to Daman provided that the
consignments were covered by certificates and the Portuguese
Government allowed a reciprocal concession for products of British

villages passing through Portuguese territory (Indian Annex F.
No. 68). This is the offer which was communicated to the Portu-
guese authorities by the letter of the 24th January,1945,which is
Annex No. 97 to the Reply. These terms were accepted by the
Portuguese authorities, It therefore appears thatthisincident was
not a mere repetition of the 19th century system of the exemption
of customs duty subject to certificates. It arose from atotal pro-
hibition of passage of any commodities over the border into Daman.
The concession which the Government of Bombay granted was only
granted reciprocally, in return forconcession from the Portuguese.
The Portuguese authorities themselves, even when faced with
this total prohibition andits very serious consequences for them,
did not attempt to set up andrely upon any right of passage. Thus,
this incident, when properly appreciated, is quite inconsistent with
the Portuguese claim of a right of passage.

393. It may be added that as a result of these wartime controls
a question later arose about goods passing in the opposite direction,
from Daman to the enclaves. On this occasion the Portuguese
authorities themselves suggested that "the same procedure as is REJOINDER OP INDIA (11 59) 201

applicable to Goa, Daman, and Diu should be made to apply to
the Nagar Aveli Pargana" (Indhn Annex F. No. 69). This is an
interesting admission by the Portuguese authorities .themselves
that entry of goods into the enclaves was not subject to any special
considerations, but to the same considerations as applied to other
Portuguese territories,

394. In paragraph 221 of the Reply, the Government of Portu-
gal argue that, whatever may have happened from time to tirne
with regard to immunity from customs duty, the right of transit
was unaffected. This argument has dready been answered in
paragraph 389 above. One further observation, havrever, may be
made. It is argued in paragraph 202 of the Reply that the right
claimed is a right of transit "to assure the liaisons required between
these parts of Portuguese territory from the economic point of
view". It is in fact clear .that the imposition of customs duty at
times involved the Portuguese popuIation in the most serious
economic difficulties: cf. letters of the Governor General of Portu-
guese India of the 27th May, x892 (Indian Annex C. No. 41, 1,

p. 378), the 2nd September, 1897, and the 6th March, 1900 (Indian
Annex C. No. 43, 1,pp. 393 and 396).Even on these occasions, the
request for an exemption was made as a request for a concession,
and not as insistence upon a right.
395. In paragraph 223 of the Reply, the Portuguese Government
appear to suggest that the Indian Government was not justified
in alleging, in paragraph 128 of the Counter-Mernorial, that Senhor
Cunha Rivara's memorandum of the 26th May, 1859 (Indian
Annex C. _hio.35, 1, p. 344), contained "a number of tendentious
inaccuracies". The Indian Government submit that this contention,
of which full particulars are given aII,p. 50 of the Counter-hlemo-

rial, was fuiiy justified. The principal inaccuracy of the memoran-
dum-the contention that the Treaty of 1779 contained a clause
establishing "the widest exemption and the freedom of tradeH-
is now admitted by the Government of Portugal to have been
untrue: see paragraph 217 of the Reply.
396. In paragraph 224 of the Reply, the Portuguese Govern- .
ment point out that the case of the Indian Government is sometimes
that the Portuguese did not clairn any right of passage "outside of
the Treaties and Accords" and sometimes that they did not claim
to have a right of passage at all. The explanation of this, of course,
is that the Portugueçe case was indeed put in these different ways

at different times. When there was an agreement or treaty in force
the Portuguese naturally relied upon that, but claimed no further
right. When there was no treaty or agreement in force they claimed
no right of transit. Furthermore, in paragraph 225 of the Reply,
the Portuguese Government cornplain that the Indian Government
refers sometimes to a right of transit and sometimes to a right of
free transit.Itrnay be that the Indian Government has been guilty202 REJOINDER OF INDIA (II59)
in this particular of some looseness of expression. The matter,
however, is.of little importance. The submission of the Government
of India, as haç been made clear, is that a right of transit cannot
exist unless it is a right of free transit. The effectheftwo expreç-

sions is thus the same.
397. Paragraphs 227 to 235 of the Reply are devoted to the
~ircelona Conference on Freedom of Communications and Transit
of 1921. In paragraph 160 of the Counter-Memorial, the Indian
Government pointed out thatthe Portuguese settlements in India
were excluded from the convention drawn up at that Conference.
The Indian Government aIso relied upon a letter written at Barce-
lona by the Portuguese delegate to the Indian delegate, containing
the following passage (Indian Annex C. No. 89) :

"~s I have told you my Government desires to arrive at a fair
arrangement regarding some difficultiesin India, whereilwill be
very difficult to apply the Conventionwe are discussing ai Barce-
lona:-
(A) Transit Dam20 Nagar Ave1i.-An arrangement that will be
most convenient for this transit that owing to some difficulties
arriving out othe salt trade, couldbe made on such basis as would
be negotiated between the two local Governrnents."
The Government of Portugal refer to certain incidents of the
Barcelona Conference, and contend that (i) India did not then
propose to prevent or obstruct transit between Daman and the
enclaves, but undertook to do the contrary; (ii) the proposa1 put
fonvard by the delegates of India, France and Portugal, from which
Article 14 of the Convention (the article excluding the Portuguese

settlements in India) was developed, arose from purely administra-
tive and fiscal considerations; (iii) that proposal contemplated
special agreements between the States concerned, but only for the
regulation of the "conditions of transit"; (iv) for this reason, the
Portuguese enclaves (like other enclaves) were excluded frorn the
Convention, but with the provision that, "to the extent possible",
the provisions of the Convention should be observed and transit
and communications facilitated. It is necessary to consider each
of these contentions, and see whether they lend any real support to
the Portuguese case.
398. The reliance placed by the Government of Portugal upon
the use of the expression."conditions of transit" may first be con-

sidered. These words occur in the proposal put forward by the Indian,
French and Portuguese delegates. The Portuguese Government
apparently desire to argue that the fact that the agreement was to
be made only about conditions of transit indicates that the right
of transit itself was something which already existed, and therefore
was beyond the scope of discussion. It is quite clear that the dele-
gates did not have any such idea in mind when they used the word
"conditions", for theirproposal related to all the French and Portu-guese settlements in India, both the enclaves and the settlements
on: the coast. Thus, agreements were contemplated to establish ,

conditions of transit, not onlyLtoand from the enclaves, but also to
and from the settlements on the coast. Tiiere is no suggestion that
there is any right of transit applicabIe to these settlements, and :
it is 'therefore'clear that the word "conditions" was rïot used with
any presupposition that a right of transit already existed. Even ,
apart from this, however, the Portuguese argument does not pro-
ceed upon a proper understanding of the word "conditions". If an
agreement was needed in order to establish the conditions upon
which transit could take place, there cannot have been any right :

of transit already in existence. Conversely, if there was already a
right of transit in favour of Portugal between Daman and the ;
enclaves, there was no need for any agreement between the Portu-
guese Government. and the Government of Bombay' about the
conditions of that transit. Yet the Portuguese delegate, in his letter I
of the 8th April, 1921 (Indian Annex C. No.'8g), expressly said that
"an arrangement that will be most convenient for'this transit'!
ought to be made. It is interesting to note that the reason why the
Portuguese delegate suggested that such an arrangement should
be negotiated was the existence of "some difficulties arriving out ;
a
of the. salt trader'.. At this time, traffic in salt, and aiso traffic in a
number of. other commodities, was entirely prohibited .between
Daman and the enclaves. The delegate, therefore, was saying that 1
traffic which was then subject to a prohibition was a matter for
arrangement. If there was room for arrangement over a complete '
prohibition, .there clearly cannot have existedhany right of transit.

399. It is hard to see what support the Government of Portugal
expect to derive from the allegation that the proposal of the Indian,
French and Portugueçe delegates was put forward for admini,
strative reasons.'What was proposed wasthat there should bespecial
agreement covering the conditions of transit. If the transit allowed . :
ovérBritish territory'was only conditional, there could be no right
of transit without an agreement on the conditions. (In fact, the '
negotiations between India and Portugal for the making of such
'
an agreement broke down: Counter-Memorial, paragraph 161.)
This was the effect of the proposal, whatever the motive for making
it' may have been. If, as the' Government. of India contend, this a
effect is inconsistent with the existence of a right of passage, itdoes
not help the Government of Portugal to Say that the proposa1 was
only made for some administrative reason,

400. The ~ortuguese Government appear to reIy upon the lan- ,
guage ofthe last paragraph ofArticIe 14ofthe Barcelona Convention.
In fact, the language of this paragi-aph'lends çtrong support to the 1
Indian case. First, what is theile provided is that, in relation to the
territories excIuded from' the Convention, the principles of the j
Convention shall be' observed .and transit and comm~unications % REJOINDER OF INDIA (II59)
z04
facilitated "to the extent possibleJ'. If, as the Government of
Portugal contend, they had by 1921 possessed and exercised aright
of transit for more than a century, it would obviously have been
inappropriate to speak of "facilitating" that transit. The argument
is made even stronger by the use of the ~vords "to the extent
possible". Where a right of passage exists, the obligation of the
owner of the land over which it exists is simply to permit the pas-
sage. If his obligations not to permit it, but only to facilitate it to
the estent possible, then clearly there isno right of passage in
existence. The qualified language of this paragraph of Article 14
shows, therefore, that the parties did not contemplatthe existence

of a right oftransit affecting any ofthe territotowhich Article 14
refcrred.
401. As to the Portuguese contention that, when the Convention
of Barcelona waç drawn up, India had nointention of preventing or
obstmcting transit between Daman and the enclaves, that, no
doubt, is true. To Saythat India at that time had no such intention
is not, however, to Say that she was bound to permit such transit
for ever, In 1921 elations between the Government of India and
the Government of Portugal were perfectly friendly and the state
of affairs in the enclaves was normal. Because, in those circum-
stances, Tndia had no intention of preventing or obstructing com-
munications between Daman and the enclaves, it by no means
follows thatitwas her intention to allow such transit in al1 circum-
stances. Had the Indian delegate at Barcelona contemplated the
adoption by the Government of Portugal of an unfriendly attitude
and the outbreak of insurrection in the enclaves, he might well have
displayed a very different intention,

402. There is one final.consideration of great importance relevant
to the Barcelona Conference. It is clear, from the proceedings of
the conference, that special and careful consideration was given to
the positionof enclaves, including the Portuguese enclaves in India.
Daman and those enclaves sverespecificallydiscussed at the confer-
ence. The Convention ultimately signed contained Article 14, one
of the purposes of which was to make provision for these enclaves.
Yet, throughout all this consideration of these very enclaves and
of transit to them, there was apparently no suggestion whatever of
the existence of any right of transit, The Government of India
submit that it is inconceivable that such a right, if itexisted,
should not have been mentioned at the conference. From the
absence of any such mention, the inference must clearly be drawn
that nobody at the conference believed such a right of transit to
exist.

403. The Government of India therefore subrnit that the infer-
ence which, in the Counter-Rlemorial (paragraph 160) ,hey drew
from the Portuguese delegate's letter of the 8th Apnl,1921 was
fully justified. The more lengthy examination of the Barcelona REJOINDER OF INDIA (II59) 205
Conference set out in the Reply only shows the more clearly that

this inference was right.
404. The final section of the part of the Reply which deals with
transit of goods is devoted to the question of the carriage of arms
over the territory intervening between Daman and the enclaves.
This section extends from paragraph 236 to paragraph 246. In these
paragraphs, the Government of Portugal make a nimber of asser-
tions about Rule 7A of the Indian Arms Rules, 1879. These rules
provided,among other things, for the issue of licences for the import
and export of arms, ammunition and military stores, into or out of
British India. Rule 7A provided as fo1Iows:-

"Nothing in rules 5, 6 or 7 shall be deemedto authorise the grant
of licences (ato import any arms, ammunition or military stores
from Portuguese India (b).."
In the Counter-Memonal, the Government of India argued that,
since the carriage of arms from Daman to the enclaves or vice
versa necessitated first their importation into British India, this
rule was always regarded as making the permission of the Govern-
ment of India essential to any such carriage, which view was

clearly inconsistent with any right to transport arms between
Daman and the enclaves. In the RepIy, the Government of Portugal
makes various assertions in reply to this argument which it is
necessary to consider.
405. The Government of Portugal contend that Rule 7A (a)
was made at the instance of the Portuguese Government. They go
on to argue that it cannot, therefore, have had the operation for
which the Government of 9ndia contend, because, if it had had, the
Government of Portugal would not have proposed it. The simple
answer to this argument is that Rule 7A (a) was not proposed by the

Government of Portugal. The rulc arose out of Article XVIII of
the Treaty of 1878. That article provided:
"The exportation of arms, ammunition or military stores from
the Indian domiriionsof one of the High Contracting Parties into
thoseof the other shalI not be permitted, except with the consent
of, and under rulesapproved of by, the latter" (Indian Annex C.
No. 40,1, p.376).
With a view to implementing this provision of the Treaty, the
Ijnder Secretary to the Government of India, Foreign Department
wrote to the Secretary to the Governrnent of Bombay, Political
Department on the 15th Septernber, 1879 (Indian Annex F. No. 70).
The answer of the Governor of Bombay, dated the 17th October,-

1879, contains the following passage :
"For these reasons, I am to state that in the opinion of His
Excellency the Governor in Councii, itis expedient that al1 im-
portation of arms etc. into British India and native and foreign
States from Portuguese India should be absolutely prohibited"
(Indian Annex F. No. 70).
15The view of the Government of Bombay was repeated in a further
letter dated the 20th October, 1879, to the Government of India

(Indian Annex F. No. 70).Meanwhile, the Government of Bombay
had communicated their views to the Government of Portuguese
India. On the 3rd Novernber, 1879, the Governor-General of Portu-
guese India wrote to thc Government of Bombay on this subject,
and his letter included the following passage:
"That I duly note what is statein Your Excellency'sdespatch
[he had already acknowledged a despatch of the 9th October, 18791
under acknowledgernent, and consider that for the present it is
advisable to prohibit altogether the exportation ofarms, ammunition
and warlike implements from Portuguese India into any District
in British India" (Indian Annex P. No. 70).

On the 26th November, 1879, the officiating Assistant Secretary
to the Government of India, Foreign Department wrote to the
Secretary to the Government of Bombay acknowledging the letters
of the 17th and 20th of October. He wrote thus:
"In reply,1am to Saythat the Government of Tndiaconcur with '
His Excellency the Governor of Bombay in Council that it is
expedient to permit no importation of arms, ammunition, and
military stores from Portuguese India into British India or into
Native Indian States.1am to request, therefore, thMr. Crawford
may be instructed to communicate with the Portuguese Govern-
ment to this effect, and to arrange forthe prohibition ofal1export-
ation from the .Goa territories into British India" (Indian Annex
F.No. 70).
It was as a result of this letter that Jfr, Crawford, the British

delegate for the Treaty, wrote to the Portuguese delegate the letter
which isAnnex 100 of the Reply. It thus appears that Mr.Crawford,
in saying in his letter that "the Government of India gives its
agreement to the proposal" for the absolute prohibition of the
export of arms, etc. from Portuguese India to British India, was
not referring to a proposa1 made by the Government of Portuguese
India, but to a proposa1 made by the Government of Bombay. That
Government communicated it on the 9th October, 1879, to the
Government of Portuguese India and on the 17th October, 1879, to
the Government of India. The letter written by the Governor '
General of Portuguese India on the 3rd November, 1879, did not
contain an original proposa1 by the Governor General, but his
acquiescence in a proposa1 made by the Government of Bombay.

406. It thus appears that rule 7A (a} originated on the British
side and not on the Portuguese, so that the argument set out in
paragraph 241 of the Reply is without foundation. It might still
be urged that the Government of Portuguese India would have been
unlikely to agree to a proposal, the effect of which was to make al1
transport of arms between Daman and the enclaves subject to the
permission of thc ,British authorities. However, it appears that in fact there are reasons why they should have done so. It ha$ already
,
been shown (see paragraphs 297-298 above) that the Portuguese ,
authorities actually suggested the inclusion in the Treaty of words
in article XVIII, the efiect of which was that permission of the ;
British authorities was required for the passage of troops or armed
police between Daman and the enclaves. The Portuguese Govern- ,
ment did this because of their g-reatanxiety that the Treaty should
forbid the entry of British troops into Portuguese territory without
the prior permission of the Portuguese authorities. If the Portu- ,
guese were ready, as they were, to submit tothe provisions requiring
the ~ermissi---of the British authorities before their troo~s could '
pass between Daman and the enclaves, they may well have seen .
no objection to agreeing that the transport of arms between Daman .

and the enclaves should be subject to the same permission.
407. Not only was Rule 7A (a) originally made on the proposa1 ,
of the British, not of the Portuguese, authorities; it was subsequent-
ly renewed without any consultation with the Government of 1
Portugal at all. In 1894, as a result of two incidents rnentioned ,
below (see paragraph 409), the Under Secretary to the Government ,
of India, Foreign Department wrote to the Secretary to the Govern- ,

ment of Bombay, Political Department, asking whether, since the
Treaty of 1878 was no longer in force, there u7asany objection to
the cancelling of Rule 7A (Indian Annex F. No. 71). The Govern-
ment of Bombay replied that they had no objection to the can-
celling of clause (b) of the rule, but they desired to retain clause
(a) (Indian Annex F. No. 71). This was in fact done, and there is no
sign that the Portuguese authorities were consulted in any way.
When the rules of 1908 were being prepared, there was a suggestion
in the Foreign Department of the Government of India that impor-
tation of arms from Portuguese India should be allowed. This sug- '
gestion, however, was abandoned, and Rule 7A (a) was retained
(India Annex F. No. 72). A rule to the same effect has been in :
existence ever since.

408. The Portuguese Government further contend that Rule
7A (a) contained a general rule, but there was a particular rule
applying to transit between Daman and the enclaves, and by
this particular rule the transport of arms was not prohibited but
authorized (Reply, paragraph 240). There is, in the submission of
the Government of India, no evidence ~vhatever of such a particular
rule, while there is evidence to show that the rule contained in Rule
7A (a) did apply to arms, etc. imported into British India in the

course of transit between Daman and the enclaves.
409. In the first place, the fact that exceptions to Rule 7A.(a) were !
sometimes made to permit the transit of arms between Daman and i
the enclaves does not mean that a particular rule was applied to
thistransit, for exceptions were somctimes made affecting transport
from other parts ofPortuguese India into British India. Twu examples
,208 REJOINDER OF INDIA (II59)
may be quoted which occurred in 1894. On the a~st May, 1894,the
Government of Bombay referred to the Government of India an
application from one Adamally Sultanally to import 2500lbs. of
dynamite from Goa into Bombay. The Government pointed out
that dynamite fell within the provision of Rul7A (a). On the 31st
May, 1894, the Government of Bombay referred to the Govern-
ment of India an application from Essoofally Mohamedally and

Company to import 12,15 coils of fusefrom Goa into Bombay. The
Government of India sent the licences forboth these imports on the
13th June, 1894 (Indian Annex F. No. 73). Another such incident
occurred in1913 , hen the Government of Portuguese India wished
to send 5 cases of sulphur via Bombay to Diu by land. SuIphur
fell under the definition of 'military stores', so was subject to Rule
7A. The Government of Bombay referred the matter to the Govem-
ment of India, and the latter Government issued a licence for the
import of the sulphur into Bombay (Indian Annex F. No. 74).
Another incident of 1913 (Indian Annex F. No, 75) shows that
exceptions were also made in cases of arms.

410. In the second place, the incidents affecting transit between
Daman and the enclaves shew, not that such transit was treated as
falIingunder a particular rule difierent from the generarule,but
that inthese.cases permission was given asa concession in circum-
stances in which, apart from that concession, the general rule would
have applied. Itis necessary to examine the incidents of1898 and

19141191 because the account of these incidents given inpara-
graphs 242 and 243 of the Reply creates a decidedly misleading
impression.

411. Indiscussing the incident of1898 (Indian Annex C. No. 63),
the Government of Portugal first contend that the Governor General
of Portuguese India in his letter of the 3rd Novembe1898 stressed
"the necessity of transportation via Britishterritory". Infact,a
reading of the letter shows that the Governor General was saying
that it was necessary to carrythe arms frorn Daman to Nagar Aveli,
and he simply added the comment "crossing the British territory".
There is no passage in the letterin which it can be said that the
Governor-Gcneral is relying upon the necessity to cross British terri-
tory in support of any right. The Portuguese Government, referring
to the notings in the files relating to the incident, allege that "in
one of theçe comments it was recognized that the case should be
treated specially". This is apparently a reference to the minute at
the top of page 493 of the Counter-Memorial [Volume 11,in which
the words actually used are these:

"I# it is decided to treat this request sp..."lly

Itatics added. REJOlNDER OF INDIA (II 59) Zog
The Portuguese Government go on to say this:

"In another comment it is streçsed that in order to go from
Daman to Nagar Aveli itwas necessar tyopassthrougB h~itish
territory: in the mind of the writer this could only mean that since
such passage waç necessary,it was not lawful for the British to
oppose it."
The second part of this sentence is a clearly unwarranted infer-
ence. The necessity to pass through British territory may well have

been mentioned as a reason for making a concession, not as a
foundation of any legal right. Indeed this seems to have been the
meaning attached to it by the writer of the next minute, who used
the w~ords"this request should, 1 think, certainly be granted". The
Portuguese Government in fact quote these words and apparently
rely upon them. In fact, however, it is clear that "should be granted"
is by no rneans'the same thing as "cannot be refused". In the sub-
mission of the Government of India, the whole correspondence and
noting aboutthis incident (Indian Annex C. No. 63) shows that the
authorities of the Government ofBombay were approaching the case
asa case in which a concession might possibly be made, but other-
wise the general rule of prohibition would apply.

412. In discussing the case of 19141x5, the Portuguese Govern-
ment allege that "there was hesitation in reaching the decision as to
whether the absolute import prohibition contained at paragraph (a)
of Rule 7A was such as to prevent the transit of miIitary arms
between Daman and Nagar Aveli". There was, in fact, no hesitation
of this kind. This appearç clearly from the minute at the bottorn
of page 497 of the Counter-Memorial [Volzime Il, which reads

as follows:
"The transport of the arms and ammunition through British
India proposed by the Government of Goa, amounts to an import
into, and export from British India, The importation of arms and
ammunition into British India from Portuguese India, is prohibited
under Rule 7 of the Indian Arms Rules of 1909."
This is a categorical statement that the particuIar transit pro-

posed, i.e. transit to and from Nagar Avcli, amounted to import
and export, of which the import was prohibited by the Indian
Arms Rules. The Government of Portugal also rely upon the minute
at the top of page 509 of the Counter-Mernoria1 [VoEume 11,
reading as fo1lows:-
"The import of military stores from Portuguese territory into
British Indiaisabsolntelyforbidden but as in this case importation
is only a preliminary to immediate exportation whichispermissible
it might be allowed. The rules relating to transport do not cover
thecase."

Upon this, the Governrnent of Portugal make the following
comment :210 REJOINDER OF IXDIA (II59)
"Thisconstitutes avery clear recognitionof the distinction made
between the two regimes; the generaLregime forbidding sim$le
import; the special, allowing passage between Daman and the
enclaves."

In the submission of the Government of India, the minute does
not show any special régime allowingpassage between Daman and
the enclaves. On the contrary, it recognizes the application of the
general rule, but suggests that an exception might be allowed. The
observation that "the rules relating to transport do not cover the
case" is made in the light of this suggestion, and is onIy another \vay
of saying that an exception may be made. In any case, to say that

the rules do not apply is by no means to Say that permission for the
transport is bound to be given. The Government of India submit
that the correspondence and noting relating to this incident (Indian
Annex C. No. 64) show that an exception was being made to a rule
which would otherwise have applied. Had the rnatter fallen, as the
Government of Portugal suggested, under a special rule, it would
hardly have bcen necessary to devote to it correspondence and
noting covering 15pages of the Counter-Mernorial.
413. In paragraphs 224 and 245 of the Reply, the Portuguese

Government endeavour to explain away the rest of the Indian
argument aboutthe transport of arms by remarking, first, "that the
need to obtain administrative licences isin noway incompatiblewith
a right of transit", and secondly, that cases "solely connected with
the problems of the existence or non-existence of immunities" are
irrelevant to the case. These arguments have already been answered
in this Rejoinder in connection with the transit of persons, and it is
necessary here only to make a reference to paragraphs 345, 346 and
389 above.

414. The Government of India therefore submit that the Portu-
guese Government fail to make any effective answer to the argu-
ment presented in the Counter-Memorial about the transit of arms
and military stores. The facts relating to such transport provide
another illustration of the requirement of permission by the British
authorities, which requirement was quite inconsistent with the
existence of any right of passage. REJOINDER OF INDIA (II 59) 211 ,

THE POST-INDEPENDENCE PERIOD

4x5. Paragraphs 247 to 290 of the Reply are devoted to the
Post-Independence Period, from 1947 to 1954, The first part of
this section (paragraphs 248 to 253) deals with what is described
as the "Favourable Attitude of the Indian Union in the first place
to transit between Daman and the Enclaves." In these paragraphs
the Government of Portugal discuss a number of incidents, most 1
of which have already been mentioned in the Counter-Mernorial.
,
It is necessary, however, to reconsider these incidents, in order to \
see that they really lend no support to the Portuguese case.
416. In paragraph 248 of the Reply the Government of Portugal
point out that during the first years after the achievement of
Indian Independence transit between Daman and the enclaveswent '
on as before. This is a suggestion of the argument, already ans-
i
wered in paragraph 278 above, that the fact that transit took place
indicates that there was a right of transit. This idea is suggested in
paragraph 248 of the Reply with reference to the Indian Govern-
nient, whereas in earlier passages of the Reply it is used with
reference to the British Government. It is only necessary to remark
that, forthe reasons given in paragraph 278above, therc is no reason ,
at al1to infer the existence of a right of transit from the fact that
transit took place.

417. In paragraph 249 of the Reply the Government of Portugal ;
,,mit that during this initial period the Indian Government showed
a spirit of goodwill and sought by various means to facilitate
transit". They Say that these facilities are really irrelevant to the
question of right of transit, but are evidence "of the initial under-
standing" of India. The Government of India submit that in fact
these incidents show nothing other than the spirit of goodwill
mentioned by the Portuguese Government themselves. The Indian '
Government entered at first upon friendly relations with the Portu-

guese Government, hoping that Portugal would adopt a reasonable ,
attitude about her Indian territories, It was this friendly spirit, and
not any consciousness of a legal obligation, which was the cause of a
the concessions and favours offered by the Indian Government.
Later, when a different attitude was adopted by the Portuguese
authorities, the Government of India were obliged to stand in the
matter of transit between Daman and the enclaves on their strict l
legal rights. These rights, in the Indian Government's submission, :
had been well recognized throughout the British period.

418. The first incident of the Post-Independence Period men-
tioned by the Portuguese Government is that of what they cal1 the '
"exemption from duty" of products of Nagar Aveli exported to212 REJOINDER OF INDIA (11 59)

Daman. The Portuguese Government allege that this exemption
from duty was granted by an agreement of 1945.They pretend
that it was a renewal of an exemption "which had remained
dormant for some time", and appear to reproach the Government
of India for not mentioning it. The whole Portuguese account of
this incident is quite inaccurate. It has already been shown, in
paragraphs 391-39a 2bove, that what was granted in 1945 was not
an exemption from duty at all. (It isanyway, something of an
understatement to Say that the exemption of products of Nagar
Aveli from duty "had remained dormant for some tirne" in 1945,
In 1945 that exemption had been abolished for50 years, and during
that penod the Portuguese Government had made vociferous efforts
to get it renewed: cf. Counter-Memorial, paragraphs 146-152.) In

1944 the Government of Bombay had imposed a complete embargo
on the movement of al1 commodities into Daman. The exemption
granted in 1945 was not an exemption from duty,but an exemption
from the operation of this embargo of rice and other products of
Nagar Aveli. Moreover, as shown in paragraphs 391-39 above, it
was granted by the Government of Bombay only in return for a
reciprocal concession grantedby the Portuguese. As the Portuguese
Government remark, the concession was suspended for a time in
1948 and 1949, because it had been abused. The Portuguese authori-
ties themselves admitted the abuse (Indian Annex F. No. 76). In
1953 the Government of India, at the instance of the Government
of Bombay, pointed out to the Portuguese Government that the
concession had again been used as a means of smuggling and
threatened to terminate it if this were not stopped (Indian Annex
F. No. 76).It isperfectly clear that this incident has nothing al1
to do with exemption from customs duty. On the other hand, it is
a very cIear example of the use by the Indian authorities, and the
recognition by the Portuguese authorities,of the right to prohibit
transit of goods between Daman andthe enclaves.

419. The Portuguese Government refer next to an exemption
from duty granted to public supplies of theortuguese administra-
tion despatched from Daman to the enclaves. It is necessary only
to refer to the language of the correspondence set out in Indian
Annex C. No. 72. This language makes it abundantly clear that the
attitude of both Gnvernments was not that the charge of duty
would have been an infringement of any right, but that the exemp-
tion was a mere act of courtesy. There is nothing in this correspon-
dence to suggesta right of transit at ail.

420. In Paragraph 250 (cj of the Reply, reference is made to the
special indulgence granted to the Governor of Daman for travelling
between Daman and the enclaves. This is said to disclose "the
special position of the enclaves and the compulsory character of
transit through the territory which separates them from coastal
Daman". It is true that the incident illustrates the particular REJOINDER OF INDIA (II59) 213 1
geographical position of the enclaves, in the sense that if it had not

been for that pcsition no such indulgence would have been needed.
The incident does not, however, provide any justification for an ,
argument that the Indian Government recognised some special
necessity about the transit giving rise to a legal right. lihat was l
asked and what was granted was an act of friendliness towards the
Governor personally. It is particularly to be noted that the indul- i
gence did not apply to any other Portuguese officials, although :
subordinates of the Governor must from time to tirne have had
occasion to seek permission to make the journey (cf. Indian
Annex F. No. 77).For a permit system existing in 1941 and applied
to Portuguese European oficials travelling between Portuguese pos- !
sessions, including Daman and the enclaves, cf.paragraph 433 below.

421. The Tastincident mentioned in paragraph 250 of the Reply a
is that of the abolition of the embargo, imposed in 1895, upon the I
import of salt from Daman into the adjoining territory, The sole ,
reason forthe abolition of this embargo was that the excise duty on
salt, for the protection of which it was originallyimposed, had been
abolished in India (see Indian Annexes C. No. 71 and F. No. 78).

422. In a footnote to paragraph 250 (d) of the Reply, the Govern-
ment of Portugal mention an incident of 1947 described in Para-
graph 193 of the Counter-Mernorial. .They Say that the Portuguese
Consul at Bombay, in a letter of the 27th November 1947 ,eferred
to "the necessity" for goods passing between Daman and Nagar
Aveli to cross Indian terntory. This letter is contained in Indian
Annex C. No. 70, not, as stated in the Portuguese footnote, in
Indian Annex C. No. 71. The letter in fact contains no such refe-
rence. The Consul did mention in it "articles of prirnary necessity",
but said nothing about any necessity of crossing Indian territory.

423, In Paragraphs 251 to 253 of the Reply, the Portuguese
Government make much of the incident of the construction of
certain culverts at. Lavacha, on the road between Daman and the ,
enclaves. The account of this incident which they give is generally
correct, but it is not right to Say that the Government of India ,
were the first ttake the matter up again after the War. As early as
September, 1946 the Governor of Daman renewed the request for

this work to be done (Indian Annex F. No. 79). lt is hard to see,
however, how any argument forthe existence of a right of transit
can be built upon thiç incident. The road between Daman and the
enclaves was of importance to the Portuguese, but of very little use
or importance to the British Government. It seems fair to infer ;
from the correspondence that, if the Portuguese authorities had not
asked for them, the culverts would not have been built. In these :
circumstances, it is perfectly understandable that the Portuguese :
Government should have made a contribution towards the cost. On I
the other hand, the construction of the culverts on these terrns was
a small act of friendliness to oblige the Portuguese Government,z14 REJOINDER OF INDIA (II 59)
and this, without any supposition of a right of transit, provides
ample explanation of the willingness of the British and Indian
Governments to do the work. It may be added that if these culverts
were essential to a right of transit, it is curious that the Portuguese
authonties showed so little interest in them. In 1943, when the

Government of Bombay said the work could not he done until
after theWar, the Portuguese Government made no complaint nor
did they try to persuade the Government of Bombay to change
this decision. The Indian authorities asked in 1948 whether the
Portuguese Government still wished the work to be done, but the
Portuguese gave no answer until 1950, Finally, the Portuguese
Chief of Police himself advised that it was "preferablenot to give
them a permanent character" (Indian Annex F. No. 79).
424. One more incident of the Post-Independence Period shows
thatthe Indian Government recognized no obligation upon them to
permit or facilitate communications between Daman and the en-
claves. On the 6th February, 1952, the Portuguese Legation in

New Delhi applied to the Ministry of External Affairs for permis-
sion to instal on Indian territory a telephone line between Dadra
and Daman. The Director of Telephones commented on this that
"it is not the policy of the Indian Go%-ernmentto permit foreign
Governments to erect and maintain telecommunication lines in
Indian terntory". The Indian Consul General at Goa wrote thatthe
real intention of the Portuguese authoritieswas to link Daman to
Nagar Aveli, and he added that "there would appear to be no
special reason to accede to the request of the Portuguese Legation".
The permission was not given. For this incident, see Indian AnneF.
No. 80.
425. To complete the picture of the Post-Independence Period,

a few additional examples are given of applications by the Portu-
guese authorities for permission for armed men to pass through
Indian territory (Indian Annex F. No. 81). REJOINDER OF INDIA (II 59) 215 .

Portztgzaeseres$onsibility for breakdown of traditional regime of :
intercoz~~.sbeetweenPortugzteseflossessionsand India
1
426. At paragraphs 29 to 46 of the Counter-Mernorial the Govern-
ment of India gave adescription ofthe regime of travel between Goa, ,
Daman, Diu, Dadra and Nagar Aveli and British India from about .
1857 to 1947 A.t paragraph 197 the Government of India demon-
strated that after the independence of India in 1947 the Govern- 1
ment of India maintained the existing regime of travel between
Portuguese possessions and India. This meant that natives of ,

Portuguese possessions could travel between India and Portuguese
possessions without requirement of passport and visa and were
exempted from provisions relating to registration of foreigners.
Portuguese Europeans were required to produce a passport and
visa when entering Indian territory by sea, air or land, and to
comply with provisions relating to registration of foreigners.

427. At paragraph 198 of the Counter-Memorial the Government
of India related the manner in which immediately after the inde-
pendence of India the Portuguese Government in pursuance of a
policy of hostility towards the independent people and Government
of India imposed restrictions on the entry and sojourn of Indian ,
nationals in the Portuguese possessions. Only four months after '
India became independent the Portuguese Governmentpromulgated
Decree No. 4950 dated the 26th December 1947 and under its '

terms "natives of neighbouring India" were required to produce :
documents and declarations of identity on their entry into Portu- '
guese possessions and to present themselves before Portuguese
Police authorities within 8 days from the date of entry into Portu-
guese possessions. At paragraph zoo of the Counter-Mernorial
the Government of India stated that by an Order in Council No. '
4632 dated 25th March 1948 (Indian Annex E. No. 45) the Portu- '
guese Government required Indian nationals who entered Portu-
guese possessions to present themselves to Portuguese Police
authorities within 24 hours of their entry. As a resuIt of the :
protests of the Government of India that by applying these de-
Crees to Indians the Portuguese Government was undermining
the traditional friendship and good neighbourly relations, the
Portuguese Government extended the time limit of 24 hours to 72
,
hours (Indian Annex E. No. 46). The Government of India stated
in paragraph 201 of the Counter-Memorial that the Portuguese
Police made use of these decrees and orders to stop, interrogate216 REJOINDER OF IND1.4 (II59)
and harass Indian nationals. The Government of India quoted from
a note of the Ministry of External Affairs to show that Indian

nationals even after having complied with the regulations were
later called up by the Central Police Organization in Nova Goa for
further questioning (paragraph 201 of the Counter-Memorial and
Indian Annex A. No. 12).

428. At paragraph 205 of the Counter-Memorial the Government
of India stated that the hostile policy which the Portuguese Govem-
ment had adopted towards the Indian Government did not find
expression only in the above-mentioned decrees and orders. The
Portuguese Government began a spate of restrictive legislation
aimed against Indian nationals and various Indian interests,
cultural and commercial, in the Portuguese possessions. In 1950
the Portuguese Government decreed restrictions on the setting up

of commercial establishments for Indian nationals in Portuguese
possessions in India. In 1952 a measure intended to affect the
resident Indian population provided that no "foreigner" could
rent accommodation without authorization of the Portuguese
Government. In the same year an authorization from the Portu-
guese Overseas Minister at Lisbon was made compulsory in respect
of transactions connected with immovable property. (An account
of the Portuguese policy of intolerance and hostility isset out in
a note ofthe Ministry ofExternal Affairs at Indian AnnexA. No. 12.)

429. As stated in paragraph 206of the Counter-Memorial, in spite
of these rneasures the Government of India did not retaliate against
the Portuguese Government or against Portuguese nationals in
India by introducing new laws and regulations either in respect of

their cultural and commercial activities in India or as regards
intercourse between the territory of the Indian Union and the
territory of the Portuguese possessions. The Government of India
continued the exemption in favour of natives or domiciled persons
of the Portuguese possessions from registration as foreigners on
production of passport or identity papers on entering into India.

430. However, the Government of India began to consider then
why, in view of the policy of hostiLity and unfriendliness adopted by
the Portuguese Government. it should not insist on strict obser-
vance of the laws and replations which were already applicable
in respect of the entry and sojourn of Portuguese Europeans in
India, which laws and regulations existed dunng British times and
which had clearly been acquiesced in by the Portuguese Govern-

ment. The Government of India saw no reaçon for overlooking
breaches of Indian laws and regulations on the part of Portuguese
officials. Several instances came to the notice of the Government of
India when Portuguese officials openly defied Indian rules and
regulations and entered Indian territory in their contravention. REJOINDER OF INDIA (11 59)
217
This illegal entry took place both at the Goa and the Daman
border (Indian Annex F. No. 94 and Indian Annex E. No. 56.)

43r The Government ofindependent India in its traditional man-
ner of forbearance and delayed retaiiation, desisted from an imme-
diate tightening of the borders. Arrangements were made at the Goa
border for prevention of entry into ,Indian territory on the part
of Portuguese European officials \vithout production of the neces-
sary documents but for some time surveillance at the borders with
Daman continued to be lax and informal. However, about the end
of 1952 it was reportedto the Government of India that the Portu-

guese Government on its part had set up a security check post on
the Daman border and that Indian nationals who entered the
Portuguese territory of Daman were stopped and questioned at
Dabel in Daman territory and were not aliowed to proceed without
being in possession of the necessary documents. In retaliation to
this measure the Government of India opened a check post at Vapi
to see that Portuguese Europeans or other foreigners did not
enter Indian territory without fulfilling the necessary obligations
(Indian Annex F. No. 95).

432. However, in spite of the above measures Portuguese Euro-
pean officials continued to evade Indian laws and regdations and
they often managed to get to Bombay without going through the
Indian check posts. On the 1stOctober, 1953, the Indian Consul
General protested to the Portuguese Government that on a number
of occasions Portuguese European officiais had travelled between
Portuguese possessions in India, that is, between Goa and Daman
and Diu and Dadra and Nagar Aveli without obtaining visas and
in contravention of theIndian Passport Act. He sent another letter
on the 5th December 1953. To this letter he received a reply from
the Chief of Cabinet of the Portuguese Governor General which was

quoted in paragraph 207 of the Counter-Memorial. The Portuguese
Government stated in that letter that the requirernent of visa
, from Portuguese Officials entering Indian territory in transit from
Daman to Nagar Aveli:
"constituteda change from thestatasquoante".

Thus the Portuguese Government admitted that its European
officialshad in fact made such transit on previous occasions without
fdfilling the requirements of Indian laws and regulations. However,
this was the firsttime that the Portuguese Government raised an
objection to the requirement of passport and visa from Portuguese
European officials forentry into India for the purpose of residence
or transit. This will become clear from the facts in the following
paragraphs.218 REJOINDER OF INDIA (II59)
Portug.ueseEuropean ogiciuls in transit befweenDaman and Nagar
Aveli (as between other Portug.ztesepossessions) wererequired by the

British Government to be in possession ofthe necessary docztments
oj tYavel
433. The British Government did not exempt Portuguese Euro-
pean officials in transit betwcen Daman and Nagar Aveli or between
Daman and Goa, et cetera.from complying with the rules and
regulations relating to entry into and transit over Indian territory.
There are documents on record to show that this position was well-
known to the Portuguese Government and was clearly accepted

by them. At Indian Annex F. No. 82 is found a letter of the 13th
June, 1941, from the Collecter of Salt Revenue, Bombay, to the
British Consul at Goa regarding the non-possession of the requisite
travel documents on the part of a Portuguese European officia1and
his wife. At Indian Annex F. No. 83 will be found a letter dated the
28th June, 1941 ,rom the British Consul at Goa to the Portuguese
Chief of Cabinet regarding the necessity of the production of a
TravelPermit on part of "al1 non-British subjects desiring to travel
in British 1imits"-including Portuguese European officials and
their wives. The acquiescence of the Portuguese Chief of Cabinet
dated the 2nd July, 1941 ,s found at Indian Annex F. No. 84. The
fact that this requirement obtained no less in the case of travel
between Daman and Nagar Aveli is found in the British Consul's
letter to the Governmcnt of Indin dated the 27th March, 1942

(Indian Annex F. No, 85). The British Consul at Goa wrote :
"The system prevailing on the Goan frontier has worked so
smoothly that 1record it here, sinceits application, in somemodified
forrn, should be possibleon the Damanand Nagar Avelifrontiers...
At the Daman and Nagar Aveli frontiers it should be possible for
the Salt Revenue authorities to issue such passby virtue of their
knowledge of the smallnumber of Europeans in each of these areas:
Powers would of course have to be delegated to responsible Inspec-
tors.The passes could then be exchanged for regular 'Travel
Sanjan." by the Kailway Police at Daman Road (Vapi), Bhilad or

The Government of India in their letter of the5th January, 1943,
(Indian Annex F. No. 86) informed the British Consul that the
Police Head Constable at Vapi was authorised to issue travel
permits to foreigners who may enter India from the Daman border
including. Portuguese European-.officiais.The .letter stated:

inform such officials of the procedure mentioned in paragraph t1
and to advise them to have their passports or othcr papers of identity
with them during the journey".

The Portuguese Govcrnment was accordingly informed and an
acknowledgement dated the 12th January, 1943 ,as received by
the British ConsuI from thc Portuguese Chief of Cabinet at Goa
(Indian Annex F. No. 87). I
I~EJOINDE ORF INDIA (II 59) 219
I
434. A letter dated the 17th February, 1945, from the British
Consul to the Government of India confirms the applicability of the ,
Permit system to travel between Daman and Kagar AveIi (Indian
Annex F. No. 88). On the 27th hlarch, 1945, the British Consul
informed the Portuguese, Chief of Cabinet: j
"European Portuguese subjects are required to take out a pass-
port for entry into British India, under rule 5 of the Indian Passport '
Rules, 1921, unless they are specifically exernpted under an order
of the Government of India." (Indian Annex F. No. 89.)

Receipt of the above letter was acknowledged by the Portuguese
Chief of Cabinet on the 29th March, 1945. (Indian Annex F. No. go.)

435. The above facts rnake it clear that the Portuguese Govern-
ment did not malre the least protest to the British Government in
regard to the requirement of passport and visa for transit of Portu- ,
guese European officialç between Daman and Nagar Aveli or
between any other Portuguese possessions. Nor did they apply for i
or obtain any exemptions from the British Government.

436, After the independence of India, the above-mentioned rules
and regulations were continued (Indian Annex F. No. gr). In his
letter of the 12th April 1949 the Portuguese Chief of Cabinet 1
claimed for the first timethat in interpretation of the Indian Pass-
port Rules, Portuguese European Officials in the service of the
Government of Portuguese possessions in India should enjoy the 4
same exemptions as natives "domiciled" in the Portuguese posses-
sions. He argued that according to Portuguese law and practice
Portuguese European officials in India had "legal domicile in
Portuguese India". (Indian Annex F. No, 92.) He was, however,

informed by the Government of India that the Indian Passport
Rules were to be interpreted according to Indian law and under I
Indian law :-
"in order that a person may be treated as domiciled in a particular ;
country, he must satisfy two conditions:-
(1)that he is residentin that country,
and
(2)that he intends to make that country his permanent home. A
man isnot to be deemed to have taken up his fixedhabitation in .
a country mcrely by reason ofhis residing there in civil, miljtary,
naval or air force service, or in the exercise of any profession or
calling." (Indian Annex F:No. 93.)

Accordingly, the Government of India did not extend the exemp-
tion to Portuguese European Officials.

*
* *

437. At paragraph 183 of the Reply the Portuguese Government
states :220 REJOINDER OF IPr'DIA (I59)
"It was onlyai the end of 1953that is already subsequent to the
independence ofIndia, that a passport and visa began to be required
of the Governor of Daman and the Portuguese officials in transit
between Daman and the enclaves. The general regime which pres-
cribed these formalities for the entry of European foreigners into
fndian territory via the land frontiers had been applicable since
1935.This regime was applied, without exception, to al1European
Portuguese officials. It was not applied, however, to those who
proceeded in transit from Daman to Nagar Aveli and vice versa."

At paragraph 261 and 262 of the Reply the Portuguese Govern-
ment described the requirement of passport and visa from Portu-
guese European oficials travelling between Daman and Nagar
Aveli as an "innovation". It is not necessary for the Government of
India to do more than to point out that the documents of 1941,
1945 and 1949 show that the Portuguese Government was well
aware in those years that Portuguese European officials travelling
between Daman and Nagar Aveli as between other parts of Portu-
guese possessions were required to comply with Indian rules and
regulations relating to entry into and transit over Indian territory,
and that the requirement of passport and visa from those officials
in 1953 was not an "innovation".

438. At paragraph 262 of the Reply in order to demonstrate the
fact of an "innovation" having been made by the Government of
India, the Portuguese Government quoted from a note of the
Portuguese Legation addressed to the Ministry of External Affairs
on the 2nd December, 1953. The Portuguese Governrnent çees in
this letter a protest lodged by its representative against the alleged
violation of an alleged right of passage. However, quite strangely
the Portuguese Government proceeds to state in paragraph 263 of
the Reply :

"Here again what is involved is aproblem of immunity. Assuch,
we repeat, itis not directly relevant to these proceedings. The fact
that transit between Daman and the enclaves was made subject to
ofsour right of transit,ities does not in itself constitute a violation
Despite this and quite naturally having regard to the innovation
involved, we protested, contrary to the Indian Government's con-
tentions in its Counter-Mernorial. This protest was expressly made
in the Notes of the Portuguese Legation at NewDelhi dated Decem-
ber znd, 1953J,anuary 18th, 1954 ,nd February t th,1954.
(hlemorial, Annexes 37, 39 and40.)
In the previous paragraph we have set out a particularly enlight-
ening extract from the first of these NotWith regard to the other
two we would respectfully draw the Court's attention to paragraph
7 of the Notes: a mere reading of that paragraph wili show that our
attitude was very different from the one which the Indian Union
has attributed to us in the passages cited from its Counter-Memor-
ial." REJOINDER OF INDIA (II59) 221
The Government of India would Iike to draw the attention of the
Court tothe great contradiction in the Portyguese line of argument.

On the one hand the Portuguese Government seeks to demonstrate ,
that the introduction of passport and visa requirement in relation ,
to travel between Daman and Nagar Aveli was an "innovation"
and violation of an alleged right of passage, and on the other hand !
states that the question of passport and visa requirement concerns
a "problern of immunity" and is irrelevant to the present proceed- ,
ings. In fact, throughout the Reply there is to be found first an
assertion as to the existence of an alleged immunity in demonstra-
tion of an alleged right of passage and then the assertion that the
:
question of immunity is irreIevant to the present proceedings.
439. Thus the Portuguese Government refers in the sarne para-
graph 263 of the Reply to Annex 40 to the Mernorial which is a note i
of the 11th February, 1954, from the Portuguese Legation to the
Ministry of External Affairs, and particularly to its paragraph 7.
Paragraph 7 of the note in question refers to the principle of "free

transit of Portztgueseofzcials" and protests againçt the passport and
visa requirement in respect of Portuguese European officiais. ,
'440. Paragraph IO of the note is even more revealing. In that
paragraph the Portuguese authorities acknowledge the decision of
the Government of India, made at the request of the Portuguese
Government, to authoritise the District Magistrate of Surat to
grant visas to Portuguese European officialç of Daman and Nagar
;
Aveli in order to Save these officials the inconvenience of applying ,
to the Indian Consul-General at Goa. However, the Portuguese
. authorities state that even this procedure did not constitute "a
practical fulfilment of the principle referred to above nor does it *
meet the needs of the administration, which, very often requires
urgent and immediate action". Thus according to the Portuguese
authorities the very existence of passport and visa requirements !
were contrary to the alleged principle of "free transit of the Portu-
guese officials" .

441. In the submission of the Government of 1ndia the above
illustrates the manner of the Portuguese presentation of the claim.
The Portuguese Government argues that the right of passage which
it claims between Daman and Nagar Aveli is a right without immu-
nity and subject to Indian laws and regulations. At the same time

it states that the application of Indian laws and regulations to SUC~ '
passage from Daman to Nagar Aveli is in itself an infringement of
the alleged principle of "free transit".
442. The Portuguese Government then proceeds in the Reply to
deal in some detail with the facts relating ta the passport and visa
requirement. Commenting on the letter of the Portuguese Chief of
,
Cabinet in respect of the production of "gztias" in lieu of passports, I
the Portuguese Government erroneously states that the words
"with validity for a period of one year" refers to visas which were ,
16 222 REJOINDER OF I-JDIA (II59)

agreed to be granted by the ~ovirnment of India. If the letter of
the Chief of Cabinet (Indian Annex E. No. 52) is read carefullit
will becorne clear that the words "with validity for a period of one
year" referred not to visas which were allegedly agreed to be given
by the Government of India but to "guias" which were to be .
issued by the Portuguese Government and whose validity as apass-
port was agreed to be recognized by the Govemment of India. This
is also clear from Annex 128 to'the Portuguese Reply which is a
letter from the Governor of Daman to the Chief Secretary of the
.Government of Bombay dated the 5th March, 1954. Referring to
"guias" the 'Governor of Daman states, "these passports are valid
for one year".
443. At paragraph 268 of the Reply the Portuguese Government
states that the Government of India frequently delayed visas for

Portuguese European officials, sometimes refused grant of visas,
progressively reduced the period of validity of such visas, at a
certain moment required two separate visas-one for the outward
journey and the other for the return journey-and created diffi-
.- culties in regard to the determination of the authority competent
to issuethem. The Portuguese Government referred in this connec-
tion to Annexes 41 to 43 to the Rlemorial and Annexes 126 to 145
to the Reply. These Annexes are miscellaneous communications,
some addressed to the Portuguese Ministry of Overseas, some to
the Chief Secretary of the Government of Bombay, some to the
Ministry of External Affairs, and they refer generally to requests for
visas. The Portuguese Government has omitted to annex the
communications of the Government of India which illustrate the
cornpliance of the Government of India with Portuguese requests.
For example, the Portuguese Government has failed to annex to
the filethe reply of the Chief Secretary to the Government of Bom-
bay to the letter of the Governor of Daman given at Annex 134 to
the Reply. In his letter the Governor of Daman stated that the
District Magistrate of Surat was sometimes away from station and
his absence caused inconvenience and delay in the granting of visas.
The Government of India accordingly authorized the Additional
District Magistrate of Surat to grant visas in the absence of the
District Magistrate on tour (Indian Annex F. No. 98). In the same
manner the Portuguese Government has failed to cite documents
which show that on a great number of occasions visas were in fact
granted to the Governor of Daman and other Portuguese European
officials.

444. Nor has the Portuguese Government told the Court that
Portuguese officials were in the habit of contravening Indian laws
and regulations. In a footnote to paragraph 268 of the Reply the
Portuguese Government refers to paragraph z~o of the Counter-
Memorialwhere the Government of India gave demonstration of the
fact that Portuguese officials continually evaded Indian laws andregulations relating to entry into India (Indian Annex E. No. 56).
The Portuguese Government simply states :-

"As a point of fact there werno instancesof such evasion"
and refers to Annex 36 to the Memorial. Annex 36 to the Memorial
is precisely the note of protest of the Ministry of External Affairs
and cites instances of breach of Indian laws by Portuguese officials.
Inthe view ofthe Government of India the Portuguese Governrnent
is not able to refute the fact thatch evasion often took place and
was encouraged and organised by the Portuguese Government.
Indeed, corroboration of this fact is found in a letter of Captain
Romba, the Chief of Portuguese Police, which has been produced
at Annex IIO to the Reply. In this letter Captain Romba states that
detached units could be sent to Nagar Aveli without using the
Daman-Silvasa road. This is an obvious reference to the practice

of the Portuguese Government of sending police forces and other
officials from Goa to Nagar Aveli without obtaining the permission
of the Government of India and complying with Indian laws and
regulations.
445, At paragraph 261 of the Reply the Portuguese Government
abandons itself to conjecture, namely, that the Government of
India required passports and visas from Portuguese Europeans in
order to hinder communications between Daman and Nagar AveIi
and in order to "cut off" Nagar Aveli. However, as the Portuguese
Government itself admits in footnote 2 to the same paragraph 261,
the requirement existed in relation not only to transit between
Daman and Nagar Aveli but to entry into India from any part of
the Portuguese possessions. This conjecture is again repeated in
paragraph 264 of the Reply. However, the baselessness of this

conjecture is to be seen from the facts stated in the Counter-
Mernofialand in the Rejoinder. The Government of India has shown
that the requirement of passports and visas from Portuguese Euro-
pean officialsentering India for residence or for traveI from one part
of Portuguese possessions to another existed during British times
and was not "innovated" by the Government of independent India.
In the second place, Indian laws and regulations did not apply
exclusiveIy to the Daman border or to transit between Daman and
Nagar Aveli. These Iaws and regulations applied equally to al1
Portuguese possessions. It is also a fact that the enforcernent of
these laws and regulations was first applied at the Goa border and
only later at the Daman border. As has been stated above, it uTasthe
Portuguese Government which took the first step and established a.
check post at Dabel in Daman territory to interrogate Indian
travellers. If it had been the intention of the Government of India.
to apply these laws and regulations with the purpose of "cutting:
off" Nagar Aveli they would certainly have applied these regula-
tions early at the Daman border. The fact that they did not do so
and applied them first at the Goa border and much later at thez24 REJOINDER OF INDIA (II 59)

Daman border shows that the Government of India had no such
intention. In paragraph 264 of the Reply the Portuguese Govern-
ment has referred to Annex 124 which is seen to be a letter from the
Chief of Cabinet of the Overseas Ministry to the Ministry of Foreign
Affairs. This letter which is dated 16th July 1953 readç:-
"...it does not seem possible to rnaintain connections by sea
during the monsoon period with Daman and Diu since these respect-
ive harbours do not permit the entrancc ofany sort of ship, evcept
in very special cases.
It is not considered accpetable that communications beimpeded
between the territories of Damao and Nagar Aveli across the Indian
Union since there are no other co~nniunications,,nortlzal objccfions
be raised conce~ningthepeaceful passage offiersons and things /rom
Goa to Damao l.1 think that the casesand objectionsraised cannot
but be the subject of diplornatic protests on our side. Toabandon
s~ch rightof transit wouldbe to give way without any compensation
whatever l."

This document itself shows quite clearly that the passport and
visa requirement applied to al1 Portuguese possessions and that
the Portuguese authorities were equally concerned about passage
from Daman to Goa and vice-versa and that it even %vent so far
as to speak of "right of transit" from Goa to Daman and vice-versa.
Accordingly, there was no special character to the Indian laws and
regulations requiring possession of passport and visa for travel
between Daman and Nagar AveIi. The Government of India did
not enact special legislation or initiate special discriminatory
measures in regard to travel between Daman and Nagar Aveli or
Goa and Nagar Aveli. The fact that these laws and regulations

operated in respect of travel between Daman and Nagar Aveli
was only incidental to the operation of the ordinary law applicable
in respect of entry into or transit through Indian territory.
446. At paragraphs 270 to 278 of the Reply the Portuguese
Government has dealt with the question of its responsibility for
causing the breakdown of the traditional relations between the
Government of Xndiaand the Government of Portuguese possessions

in India. At paragraph 271 of the Reply the Portuguese Govern-
ment states that the measures introduced by the Portuguese
Government against Indian nationals in Portuguese possessions:-
"are irrelevant to the subjecmatter of the present proceedings and
itistherefore unnecessary to dealwitli them in detail".

The Portuguese Government states that if the attitude.of the
Government of India in relation to the entry of Portuguese Euro-
pean officiaiswas the result of restrictive measures introduced in
the Portuguese possessions the Government of India should have
acted immediately when the first restrictive measures were promul-
gated by Portugal in 1947 . he Government of India ha5 already

Our italics. REJOIKDER OF INDIA (II 59) 225
shown that it exercised great restraint and forbearance in the face of
the hostility ofthe Portuguese Government towards the independent
people and Government of India. Portuguese restrictive measures

started in 1947; they went on increasing and became inlolerable
about 1952. The fact that the Government of India 1agged.behind
in retaliation and pursued for many years a policy of patience and
forbearance cannot be held to work against India or to show
anything but good faith on the part of India.

447. In paragraphs 266 and 267 of the Repljr the Portuguese
Government disputes the statement of the Government of India
that it was the Portuguese policy of repression which obliged the
Government of India to withdraw the exemption in favour of
natives who were officials of the Portuguese Governrnent. The
Portuguese Government also states in paragraph 267 that the
imprisonment of Dr. Gaitonde and similar acts of the Portuguese
Government are not to be discussed in these proceedings.It states:

"by their nature theyare part of the domestic jurisdictionaacts
ofthe Portuguese authorities,carried out in conformitwith Por-
tuguesr laws and in respect of Portuguese subjects".

The Government of India has described at paragraph 226 of the
Counter-Mernorial the manner in which Dr. Gaitonde, an eminent
surgeon, was arrested by the Portuguese authorities for having
uttered the words "1protest", in response to a statement made at
a private dinner party by a speaker that "Goa is Portugal". For
this utterance Dr.Gaitonde was arrested and taken to Lisbon and
then deported to a prison island in the Atlantic. The Government
of India also described the repercussions that followed in India after
Dr. Gaitonde's incarceration. The Portuguese Government states
that the Government of India withdrew the exemption in question
a few daysafter sending its note of the 15th March and therefore it

could have not been in retaliation to Portuguese repressive measures.
As the Government of India pointed out, while Dr. Gaitonde's arrest
took place in February and its repercussions were felt in India
immediately upon such arrest, the fact is that Portuguese repression
had begun and continued long before Dr. Gaitonde's arrest, and his
arrest was only an important incident which further exacerbated
feelings and emotions in India. While the Portuguese Government
imposed restrictions on entry and residence of Indian national5 in
Portuguese possessions, the Government of India desisted from with-
drawing exemptions enjoyed by natives of the Portuguese posses-
sions. However, the result of Portuguese acts and repressive
measures, and the feeling and emotions aroused in India, particu-
larly after the arrest of Dr. Gaitonde in February 1954 ,ere such
that the Government of Indja could not continue these exemptions
in respect of those who were in the service of the Portuguese
Government, whether European or native. Accordingly, in Xpril226 REJOINDER OF INDIA (II 59)

1954 the Government of India excluded those natives who were
officials of the Portuguese Government from this exemption. The
exemption was however continued in favour of the natives ofPortu-
guese possessions who were not in the service of the Portuguese
State.
448. Thus it will be seen that-

(1) The British Government required passports and visas
from Portuguese European officials travelling from one part
of Portuguese possessions to another.
(2) The British Government did not grant any exemption
from such requirement in respect of travel between Daman and
Nagar Aveli or Goa and Nagar AveLi.
(3) The Government of India made no "innovation" in the

matter.
(4) In spite of Portuguese restrictive measures, Tndian check
on the borders of Goa and Daman was far from being strict.
(5) Strict surveillance at the Daman border waç maintained
after the Portuguese Government opened a check post at
Dabel.

(6) The Portuguese Government introduced restrictive
measures in 1947 in respect of entry and residence of Indian
nationals in Portuguese possessions; and ernbarked on a
policy of hostility towards the people and Government of India.
(7) Portuguese officiais indulged in evasion of Indian rules
and regulations relating to entry into and travel through India.
(8) The Government of India did not take any special

measures for instituting restrictions in regard to travel between
Daman and Nagar Aveli or between Goa and Nagar Aveli. REJOINDER OF IND1.4 (1159) 227 :

SECTION III

The in~uwection in Dadru ami NugurAveZi and the esiabliskmenf of
a local de facto Goverwment '

449. While dealing with the facts of the insurrection in Dadra and
Nagar Aveli and the establishment of a local de factogovernment
in those territories in paragraphs 274to 290 of its Reply, the Yortu-

guese Government not only repeats misrepresentations of fact
and allegations made in its earlier pleadings, but considerably
enlarges on these misrepresentations of fact and allegations, and
in particular makes the allegation that the Government of India had i
"CO-operated in the attacks against Dadra and Nagar Aveli". (See
paragraphs 275 and 276 of the Portuguese Reply.) The Govern- '
ment of India will in this Kejoinder correct afresh these misrepre-
sentations of fact and will refute the allegations of the Portuguese
Government made in its Application, Mernorial, Observations on
the Indian Preliminary Objection and the Reply. 1

450. In its Application ofthe and December, 195. he,portuguese
Government set out the factsrelating to the alleged right of passage
from Daman to Dadra and Nagar Aveli in paragraphs 3 to 19.
After setting out in paragraph IO that :
"the right of passage under reference contains in particular the '
faculty of transit of armed forces or other upholders of law and
order,to the full extent required for the effective exercisofPor-
tuguese sovereignty; and that right was always exercisedwith this
latitudelhroughout thelong span of time mentionedin paragraph g 1
above" (Le. "over a long period,alrnost zooyears"), i

the Portuguese Governrnent proceeded to assert that, "as a result
of serious events" in July 1954 he above descnbed factualsituation,
namely the alleged historical exercise of a right of passage, under-
went a radical change, and thereafter India prevented Portugal
from exercising the dleged right of passage. In other words, Portu-
gal did not assertin her Application that before the events of the
insurrection India had prevented her from exercising her alleged
right of passage. Thereafter the Portuguese Government gave its
account of the events of July 1954 in paragraphs 12,13 and 14, and
it then stated in paragraph 15:

"In keeping with its duty and by the means within its power, ,
the Portuguese Governrnent attempted to come at once to the aid
of these enclavesand their inhabitants, victims oan unjustifiable
armedattack '. ,
territory, from Dam50 (littoral Damgo) to the occupiedenclavesn..."

Ouritalics.
I 223 REJOINDER OF IKDIA (1159)

451. In paragraph 23 the Portuguese Government addressed to
the Court three requests which had no connection with, and were
in no way dependent upon, the issues rising out of the misrepresent-
ations of fact and allegations which it made on the subject-matter
of the insurrection in Dadra and Nagar Aveli. Portugal's request
to the Court was (1) to recognize a right of passage vested in Por-
tugal, (2)to recognize and declare that India had prevented the
exercise of the alleged right, and (3) to adjudge that India should
allow the exercise of the alleged right. These being the requests
addressed to the Court, the Portuguese Government made in

paragraphs 12, 13 and 14 of the Application the following mis-
representations of fact and allegationç against the Government of
India :
(I) On the zrst of July, 1954, the Government of India
severed al1communications between Daman and Nagar Aveli
- and prevented the Governor of Daman from having access to
them.
(2) The Government of India concentrated troops in consi-

derable strength on Indian soi1near the borders of the territo-
ries of Daman, Dadra and Nagar Aveli.
(3) On the zzst of July, 1954, armed bands attacked Dadra
and occupied it on the zznd July, 1954, after fighting and
bloodshed.
(4) "Similar aggression" was started against Nagar Aveli.
(5) The Portuguese garrison in Nagar Aveli was taken
prisoner.

452. In its Memorial the Portuguese Government made misrepre-
sentations offact and allegations of a similar nature. In Section (D)
of the Facts ("The change of attitude of the Indian Union and the
events which have given rise to the present dispute"), the Portu-
guese Government gave its version of the breakdown from 1947
onwards of friendly relations and of the reciprocal regime of easy
travel between the Indian Union and the Portuguese possessions in
India, and proceeded to make the following assertions in paragraphs
-35 and 36 :

(1) On the z~st of July, 1954 India cut off communications
between*Dadra and Nagar Aveli and the outside world. (Para-
graph 35.)
(2) India deploved considerable armed forces between Da-
man and ~adra and Nagar Aveli and these forces dug trenches
dong the frontier. (Paragraph 35.)
(3) Armed bands from Indian territory attacked Dadra on
the z~st July, 1954.

"The limited forcesgarrisoned at Dadra resisted the assail-
ants; but since they did not have the necessary assistance,
they were overwhelmed and the band of invaders occupied
Dadra on the zznd followingbloodshed." (Paragraph 36.) REJOINDER OF INDIA (11 59) 229
(4) A "fresh aggression" was started against Nagar Aveli.

"In that case as well, Portuguese troops gamsoned at
Nagar Aveli, though very limited in number, opposed the
invasion; but, ain the case of Dadra, they were obliged to give
way to superior numbers; and Nagar Aveli was occupied."
(Paragraph 36.) .
453. In its Preliminary Objection, the Government of India lost
no time in correcting at the outset the misrepresentations of fact

madeby the Portuguese Government relating to the insurrection in
Dadra and Nagar Aveli and denying the various alIegations made
by it against the Government of India. At paragraphs 4 to 29 of its
Preliminary Objection the Government of India set out the facts
relating to the movement for freedom from Portuguese rule of the
inhabitants of Portuguese possessions in India and the circumstances
which had led to the insurrection in Dadra and Nagar Aveli. In
paragraph 22 of the Preliminary Objection, the Government of
India denied in the most emphatic manner the Portuguese allega-
tion that India had "cut communications" between Daman and
Dadra and Nagar Aveli a day before the insurrection took place.
The Government of India statedin that paragraph :

"The fact is that only a day before the liberation of Dadra, that
is, on 21 July 1954, the Governor of Daman was permitted by
the Government of India to visit Dadra and Nagar Aveli and
return to Daman."
In paragraph 23, the Government of India denied in the most
emphatic terms the Portuguese allegation that India had deployed

armed forces in the area and that these forces had dug trenches
along the frontier, In paragraphs 7 to 16, the Government of India
pointed out that the key to the understanding of the events which
had taken place in Dadra and Nagar Aveli, and the causes and
reasons for the same, was the existence of a movement of Goans for
freedom from Portuguese rule, ivhich movement existcd in Dadra
and Nagar Aveli as in other parts of Portuguese possessions in
India.
454. In its Observations on the Preliminary Objection the Portu-
guese Government did not enter into a discussion on the facts and

circumstances of the insurrection in Dadra and Nagar Aveli. In the
Introduction to its Observations it stated thatthe account given by
the Government of India in the Introduction to the Preliminary
Objection was "manifestly outside the subject-matter of the dis-
pute". It said:
"The Portuguese Government has referred to the Court a dispute
of a legal characier. It has no intention of allowing it to be diverted
into other spheres."

However, in an Annex to that pleading it proceeded to make
certain observations on the Goan movement for freedorn and the230 REJOlNDER OF INDIA (II59)

facts and circumstances of the insurrection and to cite certain '
documents in.that connection. (Annex Ito the Observations.)
455. In the Counter-Mernorial, the Government of India corrected
afresh the misrepresentations of fact made by the Portuguese
Government and denied al1 allegations and suggestions of the
Portuguese Government that India was in any way responsible for

the insurrection in Dadra and Nagar Aveli. In paragraphs 217 to
237 it set out the facts relating to the Goan freedom movement, the
insurrectionin Dadra and Nagar AveIi and the establishment of a
local de factogovernment and referred to records and testirnonies in
Indian Annexes A and E.
456. In its Reply the Portuguese Government enlarged on its pre-
vious misrepresentations and allegations; it described the insurrec-
tion in Dadra and Nagar Aveli as "invasion", "armed attack" and

"armed aggression" ;and it alleged that India had "CO-operated in
the attacks", (1) by cutting communications between Daman and
Dadra and Nagar Aveli, and (2)by deploying armed forces on the
frontiers of Daman, Dadra and Nagar Aveli. The Portuguese Go-
vernment also alleged in a general and indirect way (1) that India
had instigated and fomented the insurrection and (2) that Indian
nationals including members of Tndian armed forces had taken part
in the insurrection. Finally, the Portuguese Government alleged
that the Portuguese police personnel of Dadra and Nagar Aveli had
been "taken prisoner" by the Indian Government.

457. The Govcrnment of India, while maintaining its reservation
in regard to the attemptby Portugal to raise an issue quite different
from the request addressed by her to the Court (see Preliminary
Objection, paragraph 196, Counter-Mernorial, paragraph 6, and
paragraphs 9 and IO above), will now proceed to show that the
representations of fact and allegations made by the Portuguese
Government in its Reply, as in earlier pleadings, are false and
without foundation and have been made deliberately in a manner
caIculated to prejudice the Court.

The allegationthat India "cut communications" between Daman and
the enclaves

458. At paragraph 277 of its Reply, the Portuguese Government
repeated its allegation made in paragraph 35.of the Mernorial that
,before the insurrection in Dadra and Nagar Aveli, the Government
of India "cut off communications" between Daman and Dadra and
Nagar Aveli. In the Reply the Portuguese Government went further
than it did in the Rlemorial and it now alleged two motives forthe

alleged cutting of communications: (1) the motive to "facilitate the
aggression", and (2) to "prevent Portugal from defending herself."
In proof of its allegation that the Government of India cut corn-
munications between Daman and Dadra and Nagar Aveli, the REJOINDER OF INDIA (II59) 23r

Portuguese Government has asserted that on the 20th July, 1954,
the Government of India denied visa facilities to the Governor of
Daman and prevented hirn from going to Dadra and Nagar Aveli.
459. As stated in paragraph 22 of the Preliminary Objection and
paragraph 211 of the Counter-Mcmorial, the irrefutablefact is that
even one day before the insurrection in Dadra and Nagar Aveli, the
Government of India granted a visa to the Governor of Daman and

allowed him to proceed from Daman to Dadraand Nagar Aveli and
back. The Portuguese Government admits this fact at paragraph
277,sub-paragraph 5,of the Reply, but alleges that the Government
of India, by demanding from the Governor of Daman production
of a visa in a certain form, had introduced a new procedure in the
matter in order to cause difficulty to hirn. The fact is that in JuIy
1954, the Governor of Daman was well aware of the requirernent of
the production of a visa in a particular forrn, FormA and Form B,
for permission for passage to and from the enclaves and that this
matter had formed the subject of correspondence between him and
the Chief Sccretary tothe Governrnent of Bombay (Indian Annex F.

No. 96). The Government of India'is glad to find, however, that the
Portuguese Government does not dispute the fact that on the 21st
July, 1954, the Governor of Daman was in fact accorded the neces-
sary visas and was allowed to proceed to and frorn Dadra and Nagar
Aveli. In the submission of the.G..er.ment of India this verv fact
refutes the allegation of the Portuguese Government that Arne-
diately before the insurrection the Government of India had "eut
communications" between Daman and Dadra and Nagar Aveli.

460. In paragraph 277 of its Reply, the Portuguese Government
gave an indication of another meaning attached to what it termed
"cutting of communications". It described the breakdown of the
reciprocal regime of easy travel which had once existed between
Portuguese possessions and the rest of India and the extension of
that breakdown to travel between Daman and Nagar Aveli as the
"gradua1 obstruction of commztnicadions" l. At paragraphs 207 to
2x5 of its Counter-Memorial, the Government of India stated the
facts relating to the regime of intercourse which had at one time
obtained betwccn Portuguese posscssions in India and the rest of
India and it described the manner in xvhichthis regime underweni
change as a result of the restrictive measures initiated by the

Portuguese Government, which mcasurcs werc in themselves a mani-
festation of a general hostile attitude adopted by the Portugucse
Governrnent towards the Government of Independent India. The
Portuguese Government gave its own account of this breakdown of
relations at paragraph 259 and the following paragraphs in the
Reply. While the Government of India does not accept the Portu-
pese version of these facts or acknowledge its own responsibility
for the breakdown of relations between Portugal and India, it does

Our ttalics.232 REJOINDER OF INDIA (II59)
find, as emerging from the accounts both of the Portuguese Govern-
ment and the Government of India, the fact that a regime which

appIied to traveI in general between Portuguese possessions in
India and the rest of India, that between Goa and India, Daman and
India, between Daman and Goa, between Goa and Dadra and
Nagar AveIi, and between Daman and Dadra and Nagar Aveli,
broke down in gradua1 stages, and normal firocedures, such as the
reguirement of #assport and visas,came to be applied tosuch travel.
When the Portuguese allegation that India "cut communications"
or "gradually obstructed communications" is seen in the light of
this breakdown of relations between Portugal and India, it emerges
that al1 that the Portuguese allegatioii amounts to is that even
before the insurrection in Dadra and Nagar Aveli India denied to
Portugal its alleged right of passage overIndian territory between
Daman and Dadra and Nagar Aveli. The Government of India would
like to observe that in making this allegation, the Portuguese

Government has proceeded on the assumption that in July 1954,
Portugal had a right of passage over Indian territory and that India
was obliged not to regulate in the matter, not to demand visas from
the Governor of Daman, not to prohibit the passage of firearms,
munitions, or military equipment, over Tndian territory between
Daman and Nagar Aveli, nor to withdraw the various concessions
which may have been granted in the past either by it or by its
predecessor, on the basis of friendship and reciprocity. This assurnp-
tion itself is disputed by the Government of India in the present
proceedings. The Government of India never was and never con-
sidered itselto be under an obligation to grant passage to Portu-
guese authoritics, armed forces, arms and ammunitions, etc., from
Daman to Dadra and Nagar Aveli, or vice versa, or to waive the
production of visas by the Governor of Daman or other officials of

the Portuguese Government, or to grant a visa everytime a request
was made therefor.
461. However, the Government of India would like to reiterate
the fact that, quite apart from its rights in the matter and the
absence of a legal obligation on its part to permit passage over its
territory, it did not impose a prohibitionon passage from Daman
to Nagar Aveli before the insurrection therein and it did not deny
transit facilities to Portuguese authorities and their forces. As has
been stated in paragraphs 209 to 211 of the Counter-Memorial,
before the 1st April, 1954, natives of the Portuguese possessions,

even if they were in the service of the Portuguese Govcrnment,
could freely enter Indian territory and transit over any part of
Indian territory. After the 1st April, 1954, however, natives of
these possessions who were in the service of the Portuguese Govern-
ment could enter Indian territory only after obtaining a Permit
from the Government of India. The Government ofIndia empowered,
among other persons, the Collector and District Magistrate of Surat
to issue such Permits. In his instructions dated the 13th May1954, KEJOINDER OF INDIA (11 59)
233
to the Collcctor and District Alagistrate of Surat, the Passport
officer of the Government of Bombay wrote:

"Every application for permit should be disposed of on merits
and a permit for such period as you deem fit should be issued.
Thereis no reason, hozeieveto be specially.strictl"(Indian Annex 1
F, No. 97.)
In June-July, 1954, acting on the request of the Governor of !
Daman, the Government of Bombay appointed an extra person,
the Additional District Magistrate of Surat, to issue such permits ,
and thus expedite and facilitate the granting of the Portuguese ,
I
requests in the absence of the District Magistrate on tour (Indian
Annex F. No. 98).
462. The Portuguese Government has produced no evidence, nor
does there exist any evidence, that since the Permit System was
instituted in April 1954 it ever addressed a request to the Govern-
ment of India for permission for transit from Daman to Dadra and
Nagar Aveli of its arrned forces or police for the purpose of aug-

menting the strength of its armed forces or police in these enclaves.
Having made no such request, the Portuguese Government can
have no justification now for alleging in the first place that India
"cut communications", and in the second place that India had
caused a "breakdown in communications", and thus "facilitated
aggression" and "prevented Portugal from defending herself".
463. The true facts, as stated above by the Government of India, 1

find corroboration in the very assertions of the Portuguese Govern-
ment in paragraphs 251 to 253 of the RepIy. There the Portuguese
Government admits that, even a month or two before the insurrec-
tion in Dadra and Nagar Aveli, the Government of India began,
at the request of the Portuguese Government, construction work
on parts of the road 'between Daman and Nagar Aveli with the
intention of facilitating travel between Daman and Dadra and ;
Nagar Aveli. It stated in paragraph 253 : 1
"The construction of the culverts of Lavacha began on the 20th
May, 1954.T .he foregoing shows beyond any possible doubt that
the Portuguese, the English and the Indians al1 recognized our
right of passage through the neighbouring territory to maintain Our
communicationswith the encIaves." ;

In the submission of the Governrnent of India, while the Portu-
guese Governmeiit has sought to derive erroneous legal conclusions 1
from the facts stated in the above-mentioned paragraphs of the
RepIy, the facts themselves have the merit of demonstrating that i
the Government of India had no intention of hindering communica-
tions between Daman and Dadra and Nagar Aveli.
l

l Our italics.234 REJOINDER OF INDIA (II59)

The allegationthat India deployedarmed forces on the Jrontiers of
Daman, Dadraand NagavAveEi

464. At paragraph 35 of its Memorial the Portuguese Governrnent
alleged that the Indian Government "deployed considerable armed
forces between Daman and the enclaves, as well as around the
enclaves, and these troops dug trenches along the frontier", and at
paragraph 278 of its Reply it repeated its allegations concerning
"the concentration of Indian forces along our borders and between
Daman and Nagar Aveli".

16 (a) In the Prelirninary Objection the Government of India
took the first opportunity of denying the allegation made in para-
graph 35 of the Memonal, and it stated at paragraph 23:
"the Government of India did not, contrary to what isalleged in
the same paragraph, 'deploy considerable armed forces between
DamZo and the enclaves, aswell as around the enclaves',nor were
any trenches dug along the frontier. These allegations are wholly
unfounded. The facts are that earlyin 1953 the Government of
Bombay slightly augmented itspolice alongthe border in order to
deal with increased srnugglingand illegal trafficin the area. Smugg-
lingitmay be added, has always been a problem along the frontier
of Daman, as appears again and again in the correspondence between
Preliminary Objection."ese Authorities set out in Annex C to this

465. In view of the Portuguese Governrnent persisting in this
charge, the Government of India would like to repeat here the fact
that far from "concentrating" its armed forces on the frontiers of
Daman,Dadra or Nagar Aveli, India had not in 1954 or at any other
time stationed in the area in question any personnel of the armed
forces. In paragraph 278 of its Reply the Portuguese Government
have particularly alleged the presence of "Maratha infantry" in
Indian territory adjacent to Daman, Dadra and Nagar Aveli. It
will be recalled that these and similar allegations were made bythe
Portuguese Government at the time of the insurrection in Dadra

and Nagar Aveii. These allegations were in the nature of a pro-
paganda campaign against India and had no factual basis of any
kind {Indian Annex F. No. 99). The Government of India does
not feel itself under an obligation to answer these and other allega-
tions of the PortugueseGovernment. However, out of respect for the
Court and in order to vindicate its honour, it places on record a
certificatefrom the Army authorities together with a summary
account of the disposition of the Indian armed forces in a part of
Western India in July and August 1954 to show that :
(1) In July and August 1954 there was no Indian military
station within 92 miles of Daman, Dadra and Nagar Aveli.

(2) In July and August 1954 no troop movements took place
either towards or in the region of Daman, Dadra and Nagar
Aveli. REJOINDER OF INDIA (1159)
235
(3) In July and August 1954 Maratha battalions were no-
where near the areas in question, the nearest Maratha battalion

being at Pathankot which iç about 950 miles, away from
Daman, Dadra and Nagar Aveli (Indian Annex F. No. xoo).
These documents are based on the "Order of Battle--Southern
Command" and "Movernent Reports for the year 1954" which are
secret and confidential records of the Indian Army, and, but for its
desire to give satisfaction to the Court, and to prove its integrity in
the matter, thc Government of India wouId have been very reluc-

tant to produce them.
466. The Government of India would like to observe that, al1
along, its conduct vis-à-vti hes Portuguese Government in India
has been dictated by a policy of restraint and conciliation. India
would have had every justification in bringing her Army to the

borders of Goa and Daman by reason of the clearly provocative
attitude taken up by the Portuguese Government. At paragraph 12
of its Preliminary Objection the Government of India described
how, beginning in 1947, the Portuguese Government introduced
into its possessions in India expeditionary forces consisting of
several thousand European and African troops. The pbrpose of this
introduction was (1) to suppress the nationalist movement l and
(2) to provide provocation to India. According to the information
received by the Government of India, Portuguese armed forces in

their possessions in India rose £rom 861 in 1947 to 7,062 in early
1954.The Portuguese Government also increased its police force and
miscellaneous guards. At Daman, in addition to the armed forces,
there was a large number of police and guards. In Dadra and Nagar
Aveli alone there were about zoo police equipped with arms and
ammunition. Additional show of force was provided by the pre-
sence in Tndian waters of Portuguese men-of-war 2.

467. The Government of India prides itself on the fact that in the
face of this show of force and clear provocation it not only did not
bring its army near Portuguese frontiers, but maintained on the
borders of the Portuguese possessions police personnel having no
proportion of any kind to the number of armed forces and police
inside these possessions. The task of the Indian police personnel on
the borders of the Portuguese possessionçwas to regulate entry into
Indian territory andto prevent smuggling over the border. Smugg-

Iingover the Portuguese border, as the Government of India has had
occasion to state at several places in its pleadings has been a
perennial problem for Indian authorities. This problem has not been
made any easier by the fact tliat the Portuguese authorities them-

It isignificathat the people of the Portuguese possessions made vehement
protestsand demanded the withdrawalof the Portuguese expeditionaforces.
See hnnex F. No. 115.
" Thesc were "Pedro Nunes",BortolomeuDias", "Faial""Goncalvo Velho"
and "Afonso Albuquerque".~3~ REJOINDER OF IKDIA (II59)

selves organized or gave aid to smuggling activities (Portuguese
Reply, Annex 161, Note). However, in illustration again of the
moderation of the Indian authorities, there were assigned for the
task of controlling theentire borders of Daman, Dadra and Nagar
Aveli from the point of view of.entry of perçons and movement of
contraband no more than 77 men. These consisted of 3 sub-inspec-
tors of police, 18 head constables, 44 ordinary constables and
12 reserve constables. This is set out in a report dated the 13th May
1954, from the District Superintendent of Police of Surat to the

Chief Secretary of the Government of Bombay (Indian Annex F.
No. 101).
468. The Government of India accordingly denies in most empha-
tic terms Portuguese allegations relating to "concentration" of
Indian armed forces near or around Daman, Dadra and Nagar Aveli.

It denies that Indian armed forces dug trenches around Daman,
Dadra and Nagar Aveli. On the contrary the Government of India
asserts that it was the Portuguese Government which, in a deliber-
ate effort to whip up an atmosphere of war and emergency, dug
trenches al1 along the Diu, Daman and Goa borders, threw up
barbed wire fences at its frontiers and proclaimed virtual martial
law in these territories (Annex F. No. 115).

AEEegationsthat Iîzdia instigated the insurrection and
gaveaid fothe inszwgents

469. The Portuguese Government has generally insinuated in its
Reply that the Government of India (1)instigated the insurrection,
and (2)gave help to the insurgents. Thus in paragraph 276it asserted:
"The Indian authorities encouraged the recruitment of volunteers
prepared to act against Portugal and gave them military training."
For this extraordinary statement which has no foundation of any
kind the Portuguese Government relied on Annexes 157 and 158
to the Reply. These are "Information Service Bulletins" issued in
the City of Goa under the hand of Portuguese police chief, Captain
Romba and contain allegations made at second hand. The Govern-
ment of India denies the veracity and worth of "information"
bulletins issued in the City of Goa by a Portuguese police officer

well-known for his anti-Indian and anti-Goan inclinations. It will
be recalled that Captain Romba was the person responsible for
practising a deception on two Goan leaders, Mr. Francis Ilas-
carenhas and Mr. Waman Desai. (See Preliminary Objection, para-
graph 13,and Counter-Memorial paragraph 225 and paragraph 493
below.) The Government of India had occasion more than once to
protest against hiç behaviour towards Indian nationals. In one
incident in which he was involved he man-handled an Engineer
of the Bombay Port Trust who Ras on avisit to Goa and personally
took part in a beating given by the Portuguese police to the Engi-
neer's chauffeur, also an Indian national (Indian Annex F. No.102). REJOINDER OF INDIA (1159) 237
470. In support of its allegation that the Indian authorities insti-

gated the insurrection, the Portuguese Government produced, at
Annex 161 to its Reply, another report from the same Captain
Romba on a public meeting of Goans alleged to have been held in
Bombay. Even in this report there is no mention of Dadra or Nagar
Aveli or of any plan or instigation of an insurrection there.
471. At paragraph 281 (sub-paragraph 2) and paragraph 283 the
Portuguese Government stated that soldiers frorn the Indian forces

entered Dadra and Nagar Aveli. This statement is completely false
and without foundation. As the Government of India has already
stated above (paragraph 465) there were no soldiers anywhere
near Daman, Dadra. or Nagar Aveli. The Portuguese Government
produced no support for this statement except another statement
at paragraphs 276 (d) :
"At the end of JuIy, New Delhi Radio announced that regular
forcesof the Indian Union were marching to Nagar Aveli and in-
tended proceeclingto Silvassa."

In support of this statement the Portuguese Government relied
oii Annex 159 to the Keply which is seen to be a telegram from the
Governor General of Goa to the Portuguese Minister for Overseas.
This telegram reads :
"Radio Delhi announced regular Indian Union troops left Nagar
Avelj for Silvassa(si."

472. The Government of India would like to repeat that like other
allegations relating to the insurrection in Dadra and Nagar Aveli
made at that tirne by Portuguese representatives in India and by
the Portuguese Government in Lisbon and now repeated in Portu-
guese pleadings inthis case, the above allegation is false and with-
out any foundation whatsoever. There were no members of the
armed forces within 92 miles of the area; no Indian troops rnarched

into Dadra and Nagar Aveli; and no announcement to the effect
that Indian troops were msrching on Nagar AveIi was made frorn
New Delhi or any other s.tation of Al1India Radio. The Government
of India places on record a letter from the Director GeneraI of Al1
India Radio to the effect that he has had the records of Al1India
Radio carefully cxamined from the 12th July, 1954 ,o the 15th
August, 1954, and found that no broadcast of this kind was made
from any station of Al1 India Radio (Indian Annex F. No. 103).

473. The Governmcnt of India accordingly repudiates in the most
emphatic manner the insinuation of the Portuguese Government
that it gave heIp or assistance to the insurgents of Dadra and Nagar
Aveli either in personnel or material.
474. In its Reply, generally in the part dealing with the Post-
Independence period, the Portuguese Government has dilated on

the desire of the Government of India to see the end of Portuguese
17~38 REJOISDER OF ISDIA (11 59)

rule in India and on its syrnpathy for Goans in their aspiration to
participate in the national freedom of India. The Portuguese
Government has sought to derive from the existence of these
feelings the unwarranted conclusion that the Government of India
rnust be presurned to have fomented and instigateg the insurrection
in Dadra and Nagar Aveli. The Portuguese Government have also
spoken of an "annexation programme" of the Government of India
and thereby sought to give the impression that India wishes to
annex by force of arms Portugal's possessions in India. Nothing
could be further from the truth. The Government of India has
declared again and again that it has no wish to solve the problem

of Portuguese presence in India by resort to force. This is on record
and the attention of the Court is most respectfully drawn to the
enunciation of policy made in this regard by the Indian Prime
Minister which will be found at Indian Annex A. No. II. The lndian
Prime Minister states there:
"the policy that we have pursued has been, even as inIndia under
Britishrule, one of non-violence and we have fashioneourapproach
and conduct accordingly. This adherence to non-violence means
(i) that wemay not abandon or permit any derogation of Our.
identificatiowith the cause of our compatriots under Portuguese
rule;and.

(iiegually we may not adofit,advocateor deliberatelybring about
situationof violence.l
The fact is that al1 along the Government of India has counselled
Goans and Indians to subscribe to a policy of restraint and non-
violence, even in the face of gross provocation frorn the side of the

PortugueseGovernment (Indian hnnex F. No, 119)T .he Governrnent
of India accordingly repudiates the suggestion or insinuation of the
Portuguese Government that India instigated the insurrection in
Dadra and Nagar Aveli or incited the Goans to such action.

The allegationfhatPortzfiguese policepersonnel ofDadra and
Nagar Aveli were taken "_rlsonerJ' by india

475. At paragraph 282 the Portugueçe Government has given an
entirely erroneous account concerning the Portuguese policemen
of Dadra who were expelled by the insurgents and who entered
Indian territory after such expulsion. In the Reply, the Portuguese
Government has merely repeated the account, which was at first
given by the Portuguese Legation in New Delhi, which account was
later acknowledged to be erroneous by the same Legation inits note
of the 12th August 1954 (Indian Annex F. No. 104). In that very

note the Portuguese Legation dropped its earlier story that the
police party from Dadra had been taken to a town called Pardi, later
returned to Dadra and again expelled from Dadra. That story kvas
Our italics. REJOTKDER OF ISDIA (II 59) z39

based on a rurnour circulatecl by the Governor of Daman and
reported by the Portuguese Governor General to Lisbon.
476. At paragraph 283 the Portuguesc Government stated in
regard to the Portuguese police of Magar AveIi:

"The Portuguese officerswere invitedto discussionsat the fron-
tier with the Indian authorities but follo~vingthe conferencethey
werenot given an opporturiityto return to their troops. Thesetroops
were left without officersand were also finally taken prisoner by
those authorities."

This account of the Portuguese Government of the flight of the
Portuguese party from Nagar Aveli is also entirely erroneous. The
fact is that, in spite of the Portuguese forces in Nagar Aveli being
in some nurnber and in the possession of a great quantity of arms,

they deliberately, and of their own decision, abandoned the seat of
the Administration at Silvassa. The Portuguese Government states
in the sarne paragraph 283 that the Portuguese police party was
"victorious" in "engagementsJJ with the peopIe of Nagar Aveli.
While this cIearly contradicts the assertions made elsewhere in the
Reply that Portuguese police in Nagar Aveli did not have sufficient
arms and were defencelessl, the fact is that there were no "engage-
ments". The fighting Ras unilateral and the Portuguese poIice went

on shooting up the population of Nagar Aveli indiscriminately.
(Annex F. No. 115.)The reason why the Portuguese policeparty came
into Indian territory was that they met with the unanimous hostility
of the local population who refused them food and drink,and it was
IargeIy on account of hunger and thirst thst they took the first op-
portunity of entering Indian territory (Annex F. No. 115).The joy of
the Portuguese police party on entering Indian territory is expressed
clearly in the statements which were made to the press by the
leader of the party, Captain Fidalgo, the former Administrator of

Dadra and Nagar Aveli (Indian Annex F. No. 105).These statements
also show quite clearly that Captain Fidalgo entered with his party
into Indian territory of his own volition. The Portuguese Govern-
ment has stated that the Portuguese police of Dadra and Nagar
Aveli were kept as "prisoners". Nothing could be further frorn the
truth. Portuguese personnel, which came into Indian territoryafter
the insurrection in Dadra and Nagar Aveli, were shown every courte-
sy by the IocaI Indian authorities who gave them food and accom-

modation and purchased them train tickets to Bombay. The Portu-
guese Government has evidently forgotten that at this time, on the
14th August, 1954, the Portuguese Legation in New Delhi had
expressed to the Government of India its gratitude for the good
treatment and hospitality afforded by the local Indian authorities

Cf. paragrapl284 of the Reply:"The means of defencein the enclave of
Sagar Aveli orinthat ofDadra were negligiblAl1 we hadwere very few police
forces and very little material."240 REJOINDER OF IXDIA (11 59)
to Captain Fidalgo and his party who took asylum in Indian'terri-
tory on the 11th August, 1954 (Indian Annex F. No. 106).The fact
that Portuguese police personnel which came out from Dadra and
Nagar Aveli were never prisoners of the Government of India is also

shown by the fact that the sums which had been spent on their
welfare-food, accommodation, and train tickets to Bombay-were
charged to and paid by the Portuguese Government (Indian Annex
F. No. 107).In Bombay, where members of the Portuguese police
stayed with friends and relations, they were absolutely free to move
about as they pleased and there their welfare was the responsibiiity
of the Portuguese Consulate (Indian Annex F. No. 108). Captain
Fidalgo, the former Administrator of Dadra and Nagar Aveli, and
his wife stayed onin Bombay at their express request. Mrs. Fidalgo
wished to get medical treatment in Bombay for a chronic ear condi-
tion and the Government of India granted her request for permis-
sion to stay on in Bombay for about a month (Indian Annex F. No.
109). At her request also, the Government of Bombay allowed her
daughter to enter Indian territory from Goa and join her in Bom-

bay. Soon after, Captain FidaIgo and his family left for Portu-
gwse East Africa and the rest of the Portuguese personnel went to
Daman and Goa as soon as the Portuguese Consulate in Bombay
complied with Xndian passport regulations on their behalf. The
Portuguese Consulate however took time to comply with the pass-
port requirements and hence the departure of Portuguese police
personnel for Goa or Daman was somewhat delayed (Indian Annex
F. No. 110). During investigation by Indian passport officersit also
emerged that many of the poIice personnel had between April and
July 1954 transited Indian territoryfrom GoatoNagar Aveli without
compliance with Indian passport regulations. This was the sub-
ject of a strong protest by the Government ofIndia to the Portuguese
Legation in Kew Delhi (Indian Annex C. No. 86). The Portuguese
Legation admitted the fact of the transit of the personnel concerned
from Goa to Nagar Aveli but denied that such transit was in
contravention of Indian laws. The argument of the Portuguese

Legation was that since Portuguese personnel which went from Goa
to Nagar Aveli were given police uniforms only in Nagar Aveli,
they could not be said to have been in the service of the Portuguese
Government while in transit and thus under an obligation to
comply with passport requirements. This argument \vas rejected by
the Government of India which continued to maintain its strong
protest.

477. It will be seen from the above facts that the Portuguese
allegation that Portuguese officers and troops of Dadra and Nagar
Aveli were "taken prisoner" by the Government of India is utterly
false and without foundation. REJOINDER OF IXDIA (II 59)

The question ofimparlililobservnfioîz
478. In paragraph 287 of itslReply the Portuguese Government

stated that when it mooted the question of"impartial observation"
in August 1954, the proposa1 was rejected by the Government of
India. As the Government of India will show, the facts are quite
the opposite.
479. In the first place, the Portuguese proposa1 for "impartial
observation" concerned not the insurrection in Dadra and Nagar
Aveli but the situation in Goa and the Satyagraha which was pro-
posed to be held there by the Goans on the 15th August. The Portu-

guese proposa1 was for "impartial observation" of the situation
in Portuguese territories and in adjacent Indian territory (Indian
Annex F. No. III).
480. In the second place, it was not the Government of India
which rejected the proposal, but the Portuguese Government which
backed out from it. Thus, in its Notes of the 10th August addressed
to the Portuguese Legation, the Government of India stated:

"The Government of India also note with some gratification that
it is the present view of the Portuguese Government that, as there
are differences in opinions and in the positions held by the two
Governments, there should be a joint endeavour by the two parties
to ascertain facts and find solutions.To this end the Portuguese
Government have proposed that there shouId be impartial obser-
vation and assessrnent of facts. The Government of India while
rejecting the allegations, share the desire of the Portuguese Govern-
ment, as now expressed, to make every effort to avoid violations of
soIutions, the Government of India readily accept the proposa1oful
the Portuguese Government on the situation in the Portuguese
possessions. The Government of India, therefore, request that
the Government of Portugal appoint representatives immediately ,
to discuss with the representatives of the Government of India,
ways and means of implementing the principle of impartial obser-
vation proposed by the Portugiiese Government. The Government
of India are only concerned that the method of such implementation
should be impartial and peaceful. The detailed provisions set out
by the Portuguese Government in their Note, however, are not,
in their entirety or in material respects, considered by the Govern-
ment of India practical or suitable. For that reason, among otliers,
the Government of India have proposed that the representatives
of the two sides should meet immediately to consider the steps to
implement the principle of impartial observation, on which the two
Governments are now agreed." (Indian Annex F. No. 112.1

481. The Portuguese Government, however, interpreted the
above statement of the Government of India as amounting to
rejection of "impartial observation". Without any loss of time, on
the 14th August, the Government of India wrote to the Portuguese
Legation : REJOIKDER OF 1h;DIA (II 59)
242
"The Government cf India desire to statethat the Government
of India's note of the 10th August, is and was in~ended to be a
"prompt and clear acceptance", in principle, of the proposa1 of the
Portuguese Government for impartial observation and report in
respect of the situation in the Portuguese possessions. However, to
remove the doubts raised by the Portuguese Government, in this
regard, the Government of India reiterate theirposition that they
accept, in principle, the proposa1 of the Portuguese Government
and are ready to confer with the representatives of the Portuguese
Government in regard to the implementation of the principle.
The Government of India regret that they do not consider that the
method for settlin points in the manner set out in paragraph 12
of the Wrtuguese Eovernmentls note is either satisfactory orindeed

practical. They further fail to see how exchange of notes can be a
more speedy method or better calculated to resolve difficulties than
a conference between the representatives of the two Governments.
Such a conference could explore al1 questions, including terms of
reference, the composition of observation tearns, methods of opera-
tion of the principleof impartial observation and al1other relevant
questions. The Governrnent of India are ready for such a conference."
(Indian Annex F. No. 113.)
482. On the 19th August the Government of India appointed
their representatives for the proposed conference (Indian Annex F.

No. 114). However, after the 15th August, 1954, the Portuguese
Government lost al1 interest in "impartial observation" and it
refused to attend any conference unless certain of its conditionswere
accepted by the Government of India in advance. In its note of the
24th August, the Government of India expressed their regret "that
the Portuguese Government have failcd to convey their agreement
to a meeting of the appointed representatives of the two Govern-

ments on the 24th August as suggested by the Government of India
or to propose any alternative date". It statcd:
"It was the firm belief of the Government of India that a begin-
ning had thus been made and conversation could begin. In their
present Note (Number One) the Portuguese Government have ex-
pressed their unwillingness to proceed with the Conference between
the representatives of the two Governments unless the Government
of India agree in advance to certain conditions presented to them
in the form of a demand, which on the face of them are matters
which themselves should be çubject of the Conference. Thus, the
Government of India are called upon by the PortugueseGovernment
to accept their propositions, instead of their being sought to be
discussed and agreed at the Conference. The Government of India,
in their desire to reassure the Portuguese Government of their
earnest desire to avaiI themselves of the opportunity of the method
of negotiation offeredy the Portuguese Government's proposal, laid
down no conditions for prior acceptance. They proposed and agreed

themselves, that the several detailed propositions pertaining to
methods and other details put forward by the Portugiiese Govern-
ment and which bear any relation to the agreed principle may be
considered at the Conference. They also proposed and agreed that
the parties, if they so desire, may consider other propositions rele- REJOINDER OF IKUIA (II 59)

vant to the purpose of the ConferenThe GovernrnentofIndia have
not said that there should bno agenda for the Conference. On the
other hand, theyassume, that, accordingto normal procedures, the
Conferencewill agree on an agenda and the method of adopting it.
The Government of India have set out clearly in their Notes that
the purpose of a meeting of the representatives of the two Govern-
them." (Indian Annex C.iNo. 78.)e principlalreadyagreed between

483. From the above it emerges clearly that the responsibility
for the failure of the plan for "impartial observation" rnust rest
squarely with the Portuguese Government which avoided attending
a Conference with the Government of India. ;

484. Having thus demonstrated above that the Portuguese alle-

gations-that India cut communications, deplayed armed forces,
instigated and abetted the insurrection and took Portuguese police ,
as prisoners-are utterly falseand without foundation, the Govern-
ment of India will now proceed to deal with the misrepresentation
of facts made by the Portuguese Government concerning the events ,
of the insurrection inside Dadra and Nagar Aveli.
485. In its pleadings the Portuguese Government has invariably

prefaced its description of the events of the insurrection in Dadra
and Nagar Aveli with the words "aggression", "armed attack"
and "invasion" (e.g., Application, paragraphs 13, 14 and 15;
Memonal, paragraph 36; Reply, paragraphs 280 et seq.). At para-
graphs 281 and 287 of its Reply the Portuguese Government gave
its version of the events which had taken place inside Dadra and
Nagar Aveli in July and August, 1954. For this account of the
events the Portuguese Government relied on Appendix 2 to Annex I
and Annex 17 to the Portuguese Observations on the Prelirninary
Objection, and Annexes 173 to 177 of the Reply.

486. The Government of India will begin by dealing first with the
documents relied upon by the Portuguese Government :
Appendix z of Annex I to the Portuguese ObserVations are
facsimile copies of cuttings from certain issues of Indian news-
papers, the Hindzistan Standard of the 23rd July, the 2nd and 3rd
August, 1954,the HilzdzdstanTimes of the and August, 1954, and an
evtract from Goa Liberation Coz~ncilBulletin of Pebruary 1955.
An examination of these documents shows that, instead of support-
ing the account given by the Portuguese Government, they con-
tradict itin amost serious manner. The Hindzrstan Standard of the
23rdJuly makes it clear that the insurrection in Dadra was brought
about by a small number of Goans and a very large 'number of the
inhabitants of Dadra and that it was the local population of Dadra
which overcame and arrested the Portuguese police. The same issue REJOINDER OF INDIA (II59)
244
states that Goans did not bring any equipment with them and that
whatever equipment they then had in their possession was taken
from the Portuguese police. The Hindustan Standard of the 2nd
August likewise makes it clear that the most active part in the

insurrection in Nagar Aveli was taken by Warlis or Advisasis, the
inhabitants of Nagar Aveli. The Hindusfaiz Tiîîzesof the 2nd August
states the same fact. The Nindztstan Standard of the 3rd August
states that the Portuguese police of Nagar Aveli had abandoned
Silvassa and left it free to be occupied by the insurgents and that
they had taken with them a large quantity of arms, ammunition
and cash. The GoaLiberation CoicncilBztlletin states thatthe Indian
Government did not give any kind of heip or assistance to the
insurgents. It reads :

and could have been swepttheoffrwithh'a whiffuof grape-shot'. The
astonishing thing is that the Portuguese force withdrew from Sil-
vassa, the administrative centre, without firing a shot. Tales of
heroism have been circulated in Goa and conveyed to Lisbon of
brave men fighting heroically against overwhelming odds until
their ammunition was spent and they had to surrender to superior
force consisting of Indian armed forces camouflageaç Goan volun-
teers. This is a fiction concocttoSavethe face ofthe Portuguese
and to keep up the morale of the people."

Annex 17 to the Portuguese Observations on the Preliminary
Objection is a speech deLivered by the Portuguese Prime Minister
on the 30th November 1954. The Portuguese Governrnent have
directed attention to page 58 where, in a brief paragraph, the
Portuguese Prime Minister gave an entireiy erroneous and slander-
ous account of the insurrection in Dadra and Nagar Aveli, and
made the same kind of allegations against the Governrnent of India
as were contained in officia1 commiiniqués of the Portuguese
Governrnent issued at that time. It must, therefore, be seen to be

not as a document supporting a statement of fact made by the
Portuguese Government inits pleading, but rather as evidence of the
fact that, since that time, the Portuguese Government has carried
on relentless propaganda against the Government of India.
Annex 173 to the Reply iç a telegram from the Governor General
of Goa to the Portuguese Minister for Overseas at Lisbon dated the
24th July, 1954.It reads:
"Governor Damâo informs reports from person arrived yesterday
Damgo having had direct knowledge events Dadra leads to believe
3or 4dead on our side and 3or 4dead plus several injuredon enemx
sid... Our troops opened firefollowiwginiimutions for surrender
made from loudspeaker installed motorcar and resistance lasted
about one hour ..The invaders Dadra numbered over ~oo.,."

The falsity of this information is exposed by the very accounts
which were later given by the Portuguese Government. As was
1 Our italics. REJOINDER OF INDIA (II59) 245
later admitted by the Portuguese Government only one person
had died in Dadra at the time of the insurrection. As was also
admitted by the Portuguese Government and was corroborated

by accounts published by the insurgents and which appeared in
newspapers, only a handful of unarmed Goans had gone into Dadra
(Indian Annex F. No. 115). However, if the number 500 given
in the Portuguese Governor General's account included the popu- ,
lation of Dadra, the telegram of the Portuguese Governor General
has the merit of admitting that the major part in the insurrection
was taken by the local population. This account has also the merit
of making it clear that violence did not emanate from the demon
strators. The demonstrators asked the police to surrender and the
police answered by opening machine gun fire on them. It was this
act of the Portuguese police which provoked the demonstrators to '

retaliate and resulted in the death of the very policeman who had
o~1ned the fire. l
Annex 179 is a communiqué issued by the Portuguese Minister
for Overseas on the 26th July on the basis of the above-rnentioned
telegram of 24th July. It embellished the facts stated by the tele-
gram and set them in heroic colour.
Annex 175 is a Note from the Portuguese Legation at New DeIhi
'
to the Government of India. This Note repeated the account
contained in the communiqué and asserted that the Portuguese ,
police which were ejected from Dadra had been taken as prisoner
to the Indian town of Pardi. Annex 176 is a telegram from the
Portuguese Governor General to the Portuguese Minister for
Overseas repeating the assertion that Portuguese police of Da.dra
had been taken as prisoner to the Indian town of Pardi. As the
Government of India has stated above, in paragraph 475, on the
12th August, 1954, the Portuguese Legation itself gave a different 4
account and admitted that the Portuguese police personnel of
Dadra had never been taken to the Indian town of Pardi. Annexes ,

173 to 176 al1of which contain the "Pardi" story thus stand contra-
dicted by the Portuguese Legation note of the 12th August, 1954
(Indian Annex F. No. 104).
Annexes 177 to 181 are notes from the Portuguese Legation at
New Delhi concerning the Portuguese police personnel from Dadra
and Nagar Aveli who were waiting in Bombay pending compliance
with passport formalities by the Portuguese Consulate on their
behalf. As has been stated in paragraph 476 above, the Portuguese
Consulate was responsible for delay in the departure of Portuguese

personnel fromBombay, where, as was shownin the same paragraph,
they were absolutely free men and staying with their friends and
relations.
487. The above documents constitute the evidence of the Portu- ,
guese Government for its assertions in paragraphs 280 to 285 of the
Reply concerning the events inDadra and Nagar Aveli. The Govern- ! REJOINDER OF Ih'DIh (II59)
246
ment of India has demonstrated that these documents contradict
each other and contain statements which are false and without
foundation.

488. In the submission of the Government of India the true facts
of the insurrection in Dadra and Nagar Aveli are those which have
been set out in paragraphs IO to 16 of the Preliminary Objection
and paragraphs 217 to 237 of the Counter-Mernorial. As the Govern-
ment of India pointed out in paragraph 217of its Counter-Memorial,
for its statement of the facts relating to the insurrection in Dadra
and Nagar Aveli, it relies on the accounts published by Goans and
inhabitants of Dadra and Nagar Aveli and the accounts which
appeared in the Indian press (Indian Annex F. No. 115). The
Government of India is glad to find that the Portuguese Government

also seeks to rely on the same sources. (SeeAppendix 2 to Annex I
to the Portuguese Observations on the Preliminary Objection, and
paragraphs 485 to 487 above.) These accounts reveal the following
iiiain feature:
(1) The insurrection in Dadra kvasspontaneous and sudden
and was the result of Portuguese repression of a movement for
freedom from foreign rule.
(2) Goans and local inhabitants of Dadra and Nagar Aveli,

al1Portuguese subjects, rose against Portuguese authority and
set up a government of their own.
(3) Indian authorities gave no help or assistance of any kind
to the insurgents.
(4) Indian nationals did not take part in the insurrection
in Dadra and Kagar Aveli.

(5) Goans who went into Dadra and Nagar Aveli were srnall
in number and carried no arms or ammunition.
(6) At that time, both under Portuguese and Indian laws,
movement of native Portuguese subjects between Indian
territory and Portuguese possessions waç free and unregulated.
(7) The demonstration in Dadra was originally peaceful and

non-violent. It took a violent turn when provocation was
furnished by the Portuguese police which opened machine
gun fire on unarmed perçons.
(8) No casualties were suffered by the Portuguese police in
Nagar Aveli. The Portuguese police force withdrew from
Silvassa, the administrative capital, and voluntarily entered
Indian territory after being denied food and drink by the local
population for several days. When they entered Indian terri-
tory they were shown every courtesy and kindness by local
Indian officials.

(9) The insurrection was immediately successful and the
people of Dadra and Nagar Aveli set up their own government,
independent and effective in every way. REJOINDER OF INDIA (II59) 247.
(IO) The people of Dadra and Nagar Aveli and the Adminis-
tration set up by them have since then been firmly determined
not to submit to resubjugation by Portugal.
'
(rr) The people of Dadraand Nagar Aveli and their Adminis-
tration addressed several requests to the Government of India '
for merger of Dadra and Nagar Aveli in Indian territory.
Towards these requests the Government of India has main- !
tained till now an attitude of reserve.

489. In the submission of the Government of India the Portuguese '
version of the events of the insurrection in Dadra and Nagar Aveli
is nothing but a distortion of the truth. The Portuguese Govern-
ment has given the peaceful liberation of Dadra and Nagar Aveli
the name of "armed aggression". However, even according to the
Portuguese Government, in the entire insurrection which took
place, no more than two perçons are stated to have died out of a
population of about 41,523 The Portuguese Government has tried
to give the seizure of the administration in Dadra and Nagar Aveli
by Goans and inhabitants of the enclaves the colour of a major
arrned conflict and it has described the insurrection as an "in- !

vasion". However, the fact is that the insurrection was not armed
and {vas in the nature of a bloodless seizure of power by unarmed ;
demonstrators, ~vho were al1 Portuguese subjects. The only act ,
of violence against Portuguese authority which occurred in Dadra
was unpremeditated and it took place because of sudden provo-
cation provided by machine gun fire on a peaceful and unarmed
demonstration. This is fullyborne out by the accounts published by
Goans and the inhabitants of Uadra and Nagar Aveli (Indian
Annex F. Nos. Ir5 and 117, and E. No. 63.) The very accounts
relied upon by the Portuguese Government constitute the clearest
rebuttal of the Portuguese allegations and the clearest support for

the facts stated by the Government of India. ,
490. As the Government of India has stated above in paragraph
488, the key to the understanding of the cvents which took place in
Dadra and Nagar Aveli, the causes and reasons for the same, is the .
existence of the movement of Goans for freedom from the Portuguese
rule and the fact of the identity of the people of Portuguese posses-

sions in India with the rest of the population of India from the
point of view of race, religion, language and national aspiration. ,
The movement of these people for frcedom from the foreign rule
obtained in Dadra and Nagar Aveli as in other parts of the Portu- ,
guese possessions in India. This movement was not created by the
Government of India. It existed even before India attained her
independence. In its Preliminary Objection and Counter-Mernorial ,
the Government of India demonstrated the identity of the people ,
of Goa, Daman, Diu, Dadraand Nagar Aveli witk the people of the
rest ofIndia and their common aspiration fordeliverance from foreign
rule, which aspiration existed even before Indiaattained herindepen-248 REJOINDER OF INDIA (II 59)
dence from British and French rule. (See paragraph 4 et seq. of the

Preliminary Objection and paragraphs 218 et seq. of the Counter-
Mernorial.) The main points which emerge from the facts and docu-
ments cited in that connection in the Preliminary Objection and
Counter-Memorial are :

(1) The people of Goa, Daman, Diu, Dadra and Nagar
Aveli are in no way different from the people of the surround-
ing Indian regions and have close connections with people in
India.

(2) No less than 150,000 Goans reside in India out of which
at least 80,000 to go,ooo reside in the State of Bombay.

(3) Natives of Goa, Daman, Diu, Dadra and Nagar Aveli
could, till recently, corne and go between these territories and
neighbouring India without any formalities, and they had
constant and close connections in Indian territory.

(4) There was in Portuguese possessions in India a move-
ment for freedom from Portuguese rule which had its origin
in 1928 and earlier. There was even before that date a long
history of revolt and rebellion from Portuguese rule.

(5) In March, 1946, more than one year before India at-
tained independence, Goans intensified their demand for free-
dom from Portuguese rule l.

(6) The Portuguese Government suppressed this peaceful
and non-violent movement with the utmost cruelty and intro-
duced into Goa, Daman and Diu severa1 thousand European
and African troops.

(7) The result of Portuguese repression was that the Goan
liberation movement went underground and many Goans fied
to India and joined Goan communities in Bombay.

1It is significant that even Dr. Salazar recognized and gave public expression
to the fact that theulfilment of Indian aspirations on the part of the British had
a tremendous effect on the imaginatioof the people of Portuguese possessionin
India. Thus on the zrst November, 1947, he stated:
"It is natural that the gale which swept India should have stirred up the
people of Goa as well..."
on the 20th October,1949:
"..the very magnitude of the historic occurrence across the frontiers had
given rise to (similar) aspirations...".

In a speech detivereon the 30th November, 1954, he said:
"There is no denying that this tremendous fact of the English withdrawal
and the ptacing ofthe future of India in the handsof her people brought a
threatof moral crisis for little Goa."
Earlier inthe speech he had admitted that the "crisis" had begun with the
enactrnentofthe Colonial Act in1930:
"The discontent of Goans over the ideas contained in the Colonial Actof
1930must bc seen as the starting point of the crisis."
- -
(See Portuguese Observations,Annex 17.) REJOINDER OF INDIA (II59) 249 '

(8) The new Government of independent India took up the
question of foreign enclaves with the French and Portuguese
Governments. -4 friendly settlernent was reached with the
French Government, but the Portuguese Government refused

to enter into discussions of any kind.
(9) The totülly intransigent attitude of the Portuguese !
Government further intensified the Goan freedom movement,
and Goans, both in Portuguese possessions and in India,
increased their agitation against Portuguese rule.
(IO) Inside the ~ortugues~ possessions, Portuguese Govern-
;
ment met this freedom movement with severe repression which
was characterized by :
(i) Complete denial of civil liberties, absence of freedom of
expression, assembly, etc., total censorship of press and
publication.
(ii) Infliction of physical punishment on nationalists meted
out on the spot by Portuguese military and police;
(iii) Imposition of long tcrms of imprisonment and deportation
to prison islands in the Atlantic.

(II) In 1953-54, Portuguese acts of repression and provoca-
tion were more than the Goans could bear, and in 1954, the
months of March, April, May, June and July saw the Goan
freedom movement at its highest pitch (Indian Annex F. No.
115). This heightened feeling and excitement touched off an
insurrection in Dadra and Nagar Aveli and Goans and inhabi-
tants of Dadra and Nagar Aveli proclaimed themselves inde-
pendent of Portuguese rule and set up an administration of
their own, 1

491. In its Introduction to the Observations on the Preliminary .
Objection, the Portuguese Government described the facts relating ,
to the Goan freedom movement as having no connection with the
case and being "manifestly outside the subject-matter of the
dispute". Itsaid: "The Portuguese Government has referred to the i
Court a dispute of a legal character. It has no intention of allowing
it to be diverted into other spheres." The Portuguese Government,
however, proceeded to make a certain number of observations with i
regard to the facts relating to the Goan freedom movement at

Annex r to the Observations. There the Portuguese Government
denied the testimony of its own historians as to the nature of
Portuguese conquest and domination in India and even disputed 1
the fact of the identity of the inhabitants of Portuguese possessions
with the people of India. In its Reply, the Portuguese Government
referred at paragraph 290 (a) to the same Annex Ito its Observs-
tions and at paragraph 280 (f) it referred to "a srnallvolume contain-
ing certain scholarly testimonies by highly qualified persons" which
it presented at Annex 195. This Annex is intended by the Portu- '
guese Government to demonstrate that there is no identity between . REJOIKDER OF INDIA (II59)
250
the populations of Portuguese possessions inIndia and the rest of
India, and that there doeç not exist a Goan freedom movement.
The Government of India will likewise examine in a separate Annex
the worth and veracity of the testimonies produced by the Portu-
guese Government, comment on the various observations made in

the above-mentioned Annex I and Annex 195, and it will let the
argument regarding the identity of the two populations and their
national aspirations be decided by the testimony of Goans them-
selves.It will accordingly produce in that Annex the writings and
public pronouncements made by Goans from about 1928 onwards
(Indian Annex F. No. 1151.
492. As regard the existence of the Goan freedom movement, the
Portuguese Government stated in paragraph 290 (d) of the Reply:

"The Portuguese Government categorically rejects in their en-
tirety the political assertions produced by the Indian Union in these
proceedings but, we repeat, it is unwilling to initiate on this point
discussion which has no place here. These assertions merely repro-
duce other assertionsmade outside these proceedingswhichhavealso
been duly refuted outside these proceedings."
493. In the view of the Government of India, however, it is
necessary to study the facts of the Goan freedom movement for a
proper understanding of the insurrection in Dadra and Nagar
Aveli. This insurrection was the result of the existence of a move-

ment for freedom from foreign rule and of its suppression by the
Portuguese Government. At paragraph 13 of the Preliminary
Objection and paragraph 225 of the Counter-Memorial, the Govern-
ment of India described the manner in which the Portuguese police
chief, Romba, wrote to certain leaders of the Goan freedom move-
ment at Bombay and invited them to Daman for discussions on the
political future of the Portuguese possessions in India. In his
letter, Captain Romba informed them that he had powers conferred
on him by the Rlinisterial Act promulgated by the Overseas Minis-
try for the purpose of intervening in the political problems of this
nature, relating to Goa, Daman and Diu (Indian Annex A. No. 5).
Having lured the Goan leaders to Daman, Captain Romba arrested
them and subjected them toindignities. For the convenience of the
Court, paragraph 225 of the Counter-Memorial is reproduced below :

"On the7th August, 1953t,he same Captain Fernando R. Romba,
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 hwas empowered by the Overseas Ministry at Lisbon
to discuss al1 poLitica1problems regarding Goa, Daman and Diu.
(Indian Annex A. No. 5.)After an exchangeoftelegrams,and having
received the necessary assurances, Mr. Mascarenhas, accompanied
by Mr. Waman Desai, Secretary of the United Front of Goansand a
party of four,leBombay forDaman. At Daman they urerereceived REJOINDER OF INDIA (II59) 251 ,
by the Acting Governor. 0n.the 13th August, 1953, at 3 a.m., an
agreement was signed. However, as Mr. Mascarenhas 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 from them. After
three days of detention and rough treatment Mr. Mascarenhas and
his party were let off and conducted to the border."

The above incident was related in some detail by the brother of
Francis Mascarenhas, one Mr. G. Mascarenhas, who approached the ,
Government of India and sought its intervention in securing the
release of his brother (Indian Annex 1:.No. 116). In his account he
states: I

"At Dam20 the members of the party wereintroduced to Comman-
dante Romba and other high officials. With the exception of my ;
brother who was housed at the Governor's Palace, boarding and ,
lodging arrangements were made for the other members of the 1
Party at a Hotel in Damao. From the day of their arriva1 in Dama? :
and for the followingtwo days the party used to meet Commandante
Romba regularly every morning and evening at the Governor's
Palace for discuçsions in the matter. The meeting which was con- ,
vened on the 13th evening went on till the early hours ofthe 14th
with the result that even the lightingrestrictions had to be relaxed.
At this meeting which concluded at about 3 am. on the 14th they .
were supposed to have arrived at a final arrangement. The agree-
ment waç accordingly typed out and signed by Commandante Rom-
ba and Shree F. Mascarenhas respectively after being thoroughly !
scrutinized by the Legal Adviser of the Portuguese Government
who was alsopresent on that occasion. The meeting then terrninated
and as the members of F. Mascarenhas party were leaving for
their hotel at about 4 a.m. a Police party surrounded the place and ,
put thcm al1under arrest. The signed docum'ent and other papers :
were then taken possession of. With the exception of Pereira and
Ferdinands the other members viz. Waman Deçai, Mudras and
Barreto were hand-cuffed. The arrested persons were then taken
charge of and they were interrogated by turn. It was whiIe they
were at the palace that Ferdinands noticed Shree F. Mascarenhas
being taken away. His persona1 belongings which were detained in ,
the palace were inspected in the presence of the rest of the party.
the servicesrendered abyeahim as a Photographer from Shri F. Mas-
carenhas' purse which he declined to accept."

The Government of India has already stated in paragraph 469
above some facts relating to the character and activities of Captain
Romba. It would like to repeat its observation that it is on the
baseless rurnours and reports circulated by this personage that the
Portuguese Government relies for evidence in support of its allega-
tions against India,

494. The above acts of provocation to certain leaders of the Goan
freedom movement were followed by other acts of similar nature.
The uproar which resulted from these acts was silenced in the REJOINDER OF INDIA (11 59)
S52
Portuguese possessions with unprecedented severity. Press reports
of that time, some of which are appended at Indian Annex F. No.
115, shew that stringent censo~xhip controlled expression of opinion
in the Portuguese possessions. Infringements of Portuguese press
laws were dealt with severely and newspapers in Goa were required
to keep security deposits with the Government. There was no free-
dom of association. No public meeting or assembly could be con-

vened without previous permission of the authorities and every
speech intended to be delivered at such meeting had to be seen and
passed by the Censor. Special powers were given to the police and
under the laws the Court could not question the legality of police
proceedings or permit the assistance of advocates when such pro-
ceedings were in progress (Indian Annex F. No. I 15).

495. As stated in paragraph 14 of the Preliminary Objection and
paragraph 226 of the Counter-Mernorial, in February 1954, an
erninent Goan surgeon, Dr. Gaitonde, was incarcerated by the
Portuguese authorities for having uttered at a private dinner party
the simple words "1protest" in response to a statement made by an
after-dinner speaker that "Goa is Portugal". Dr. Gaitonde was taken
to Lisbon and his trial opened there on the6th July, 1954. On that

day it was stated in the Court:
"The trial iseing held in Lisbon to avoid the environment of
excitement it would have caused had it been held in Goa." (Indian
Annex F. No.115.)

This was in itself a tacit admission of the fact that public feeling
in Goa (and in India) was highly inflamed by Dr. Gaitonde's arreçt,
trial and final deportation to a prison island in the AtlantAcgreat
nurnber of protest meetings and demonstrations were held by
Goans both in Goa and in India. The Portuguese Government met
this agitation in the Portuguese possessions by making further
arrests of eminent Goans, advocates, doctors and teachers and
subjected a great many others to interrogation and house search.
The news of these further arrests produced the strongest emotions
in the Goan population of Bombay (Indian Annex F. No. 115).

496. The Government of India protested to the Portuguese

Government and informed them that repression of this kind was
likely to have severe repercussions inIndia, repercussions for which
the Government of India could not be held responsible (Indian
Annex A. No. 6). The Portuguese Government, however, persisted
in itsattitude and stated in a communiqué of the 3rd July, 1954:
"When such activities take place in national territory and, more-
over, when they are carriedout by Portuguese citizens, they are
exclusivelya matter for the cornpetence of the Portuguese authori-
ties. In such matters any intervention of foreign countries is in-
admissible." (Indian Annex F. No. 118.) REJOINDER OF INDIA (II 59) ,253 ,

Thus the Portuguese Government, while it recognized the exist- .
ence of a movement by Portuguese subjects, asserted its sole :
cornpetence to deal with its subjects. It was in the same month,
July 1954, that Francis Mascarenhas and +Waman Desai, Goans,
subjects of Portugal and victims of Captain Romba's deception ;
and 111-treatment, undertook direct action against Portuguese
authority in Dadra.
497. The Government of India, accordingly, submits that the

insurrection in Badra and Nagar Aveli must be seen in the light
of the aspirations of the people of Portuguese possessions for inde-
pendence from foreign rule and of the denial of those aspirations by i
the Portuguese Government.
498. The Government of India would like to draw the attention of '
the Court to the fact that the Portuguese Government is either

unable or unwilling to acknowledge the existence of the aspirations
of the people of Portuguese possessions in India and the movement
of Goans directed towards the extinction of Portuguese rule in
India. In the same manner, the Portuguese Government does not
wish to take account of the fact that there isin Dadra and Nagar
Aveli a people and government independent of Portuguese rule who
have made remarkable progress on the social, economic and educa-
tional fronts, progress of the kind never achieved in a hundred
years or more of Portuguese rule. Thus at paragraph zgo (a) of its ,
Reply, referring to the Report of the independent Administration

of Dadraand Nagar AveIi published by the Goa League of London,
the Portuguese Government States:
"The Indian Government has appended to its Counter-Mernorial
a booklet which is entirely devoid of value both from the point of
viewofits contents andits origin.The subject-matter ofthis booklet
falls outside the limitof these proceedings and it is unnecessary,
therefore, to reviewit although it would be extremely easy todo SO.
In accordancewith the position it adopted from the very beginning, ,
the Portuguese Government confines itself to stating that it does ,
not accept the assertions contained therein."
No other comment wai made by the Portuguese Government on
the establishment of a de facto local government in Dadra and
Nagar Aveli.

499. As stated in paragraph 16 of the Preliminary Objection and
paragraph 229 and the following paragraphs in the Counter-Memo-
rial,the insurrection in Dadra and Nagar Aveli was immediately
successful and the people of those territories having proclaimed their
independence from Portuguese rule set up an Administration oftheir
own. This Administration, with legislative, judicial and executive
,
machinery of its own, has effectively functioned in these territories ,
and has much achievement to its credit. (Indian ilnnex F. No. 117.)
500. As also statcd in paragraphs 232 to 237 of the Counter-
Mernorial on a number of timeç the people of Dadra and Nagar
I8 ,254 REJOINDER OP INBIA (II59)
Aveli and the Administration of the de facto local government
there have expressed their hatred of Portuguese colonial rule and
their determination not to submit to re-subjugationby Portugal, and
they have on a number of times requested the Government of India
to accept the rnerger of these territories with greateIndia (Indian

Annex E. Nos. 64, 65, 66,67 and 68).However, the Government of
India has up to the present maintained an attitude of reserve to-
wards those requests.
501. In the submission of the Government of India, if at al1proof
is required of the bona fides and integrity of the Governrnent of
India and itç policy of moderation, restraint and patience vis-à-vis
the problem of Portuguese posçessions in India, it is to be found in
the fact that inspite of innumerable requests from the people and
Administration of Dadra and Nagar Aveii and considerable pres-
sure of public opinion, it had even in the eighteen months preceding
Portugal's Application to the Court continued to maintain an atti-

tude of reserve towards these requests.
502. The Government of India, while adhering to its reservation in
paragraphç g and 457 above, has thus demonstrated that Portuguese
assertions in the matter of the alleged responsibility of India for the
insurrection in Dadra and Nagar Aveli are false and without foun-
dation;that the Government of India had nothing to do with the
insurrection in Dadra and Nagar Aveli which was spontaneous and
which was made by Portuguese subjects; that the insurrection in
Dadra and Nagar Aveli was apart of the Goan freedom movement,
which had its origin in1928 and earlier, and which gathered strength
on the eve of the independence of India; that the people of Portu-
guese possessions were driven to this form of direct action against
Portuguese Government because of total intransigence of the

Portuguese Government, coupled with severe repression in Portu-
guese possessions; that the immediate provocation for the direct
action lay in the incident in Daman for which Captain Romba, the
Portuguese Chief of Police, was responsible, and in the repression
that followed the incarceration of Dr. Gaitonde; and that Francis
Mascarenhas and Warnan Desai, two Portuguese subjects and
leaders of the liberation movement, were the victims of Captain
Romba's deception in Daman. REJOINDER OF INDIA (II 59) 2.55

Part II '

THE RIGHT CLAIMED BY PORTUGAL

503. In Part III of the Counter-Mernorial the Government of India ,
made a careful analysis of the Portuguese claim, pointing out both
its dubious legal character and the marked difference of emphasis
in its presentation-on the one hand, in the Application and
Mernorial, and on the other in the proceedings on the Preliminary
,
Objection. The Portuguese Government cornplains that its claim
has been misrepresented by India and it devotes Part I of the RepIy
to criticizing some of the points in IndiaJs analysis of the claim *
and to setting out its own conception of Portugal's alleged riglits.
IndiaJs view on this matter have already been put before the Court
in the Counter-Mernorial and in the proceedings on the Prelirninary '
Objection, and it is not proposed to go over al1 the same ground
again. The somewhat tendentious account of the whole matter
found in Part 1 of the Reply does appear, however, to callfor some
comment.

504. In the Reply, as in the proceedings on the Preliminary Ob-
jection, Portugal protests that she clairns no immunity from the
exercise of India's sovereignty nor any right to share with India in
the exercise of any part of the latter's territorial sovereignty, but
merely a bare right of transit across India's territory. Thus, in
paragraph 25, she says:

tion, àolaquelle il lui semblait avoir répondu d'avance. Faut-il
répéter qu'ilne songe pas à contester que 1'Unionindienne possPde
sur son territoire une compétence exclusive,en ce sens qu'elle seule
peut y exercer tous les attributs dla souveraineté?Faut-il répéter
qu'il n'entend donc pas soustraire les personnes et les biens en
transità l'exercice de la souveraineté locale? Faut-il rafipelevque
tout ce qu'il demande, c'est qu'en exergant sa souverainetél,'Union
indienne le fasse dans les conditionsqui n'empêchenptas lePortugal
d'exercera sienne sur lesenclaves?"

505. Summing up her argument in paragraph 28, Portugal again
says :
"La quest.ion qui se pose n'est pas,en effet, de savoir si la com-
pétence de l'Indeest exclusive, ence sens qu'elle seule est qualifiée
pour l'exercer. La question est de savoir si cettecompétenceest dis- ?
crétionnaireou si elleest soumiseàl'obligationdene pas faire obstacle
au transit nécessairepour quelePortugal #uisse exercere8ecfivement
sa souverainetésur lesenclaves."

506. In the view of the Government of India, these two passages
in the Reply are simply an ingenious attempt by Portugal's counsel ~5~ REJOINDER OF INDIA (II 59)

to turn the issue in the case jnside out-to make the issue appear
to be the question of India's obligations with regard to Portugal's
exercise of Portuguese sovereignty in the enclaves, instead of what
it actually is, the question whether Portugal possesses an excep-
tional right of transit requiring India to waive, to a certain extent, in
favour of Portugal, the normal exercise of her exclusive sovereignty
in the Indian territory lying between Daman and the enclaves.
It was the principle of "the exclusive competence of the State in
regard tu its own tzrritory" which Judge Huber said had been
established during the last few centuries in such s way as to make
itthe point of departure in settling most questions that concern
international relations (see paragraph 161 of India's Preliminary
Objection). Portugal, while paying lip-service to India's exclusive

competence in regard to the territory between Daman and thc
enclaves, is really asking the Court to take as its point of departure
for determining a claim to transit over Indian territory,not India's
excIusive competence over the territory in question, but Portuguese
sovereignty in another territory. This seems to be a complete
perversion of the fundamental principle of international law men-
tioned by Judge Huber.
507, Portugal's whole thesis concerning the nature of the issue in
the case hinges upon the proposition that her claim does not in-

volve, and never has involved, any claim to immunity from the .
exercise of India's exclusive sovereignty in regard to the Indian
temtory in question. This proposition cannot be accepted for the
several reasons which have already been adumbrated by India in
her Counter-Mernorial.
' 508. One reason is that it is not true historicaliy that Portugal has
never claimed immunity from the exercise of India's sobereignty.
as was pointed out in paragraph 246 of India's Counter-Memorial.
In both 1818 and 1859 the Portuguese authorities in Xndiaclaimed,

in the most distinct manner, exemptions from customs duties and
taxes for goods in transit between the enclaves and Daman, alleging
that these exemptions were due to them under the Treaty of
Punem. The fact that this claim was completely repudiated by
the British authorities does not aller the fact that it was the claim
made by Portugal at those dates. In her Reply Portugal avoids
this difficulty by simply not noticing the historical facts recounted
in paragraph 246 of the Counter-Mernorial. She baldly asserts that
theclaimis,and has always been, a claim to a bare right of transit
without immunity. Yet nowhere in al1 the voluminous records in
the case can be found anything resembling this formulation of the
Portiiguese claim-not even when the Portuguese authorities were
objecting to such important local measures as the total embargo
on the importation of salt from Daman in 1895 and of datesin 1912.

509, Another serious obstacle to Portugal's proposition is that,
under an established rule of customary international law, foreign REJOIKDER OF INDIA (II59)
257
troops in transit over a State'sterritory are accorded immunity from
the local jurisdiction in respect, at least, of their interna1 discipline
and administration. The Government of India drew attention to this

difficulty in paragraph 257 of the Counter-Memorial and referred
to G. P. Barton's scholarly discussion of the immunities of foreign
troops in Volumes 26 and 27 of the British Year Book of Inter-
national Law. Portugal's technique-it can hardly be called an
argument-for disposing of this difficulty is really rather extra-
ordinary.

510. Portugalsays that Barton's articles inthe British Year Book
were concerned only with the immunities of foreign troops coming
to and sojourning on a State's territory pursuant to the latter's
unsolicited invitation, and do not therefore support the inference
drawn from them by India. It is, of course, perfectly true that the
subject of Barton's two articles was the immunities of "visiting"
forces, the practice in regard to which has developed so largely in
the past thirty-five years. Inevitably, however, Barton was led to
refer to troops in transit becausethe Eeadingcaseon the wholesztbject,
thefamous caseof theSchoolzerExchange, concerned the irnmz~îzitieof

troops in transit. In fact, the earlier article in Volume 26 on immu-
nity from supervisory jurisdiction contains numerous references to
the case of troops in transit, of which it must suffice to mention two.
51 I. On page 383, Barton cites the following significant passage '

from the judgment of Chief Justice Marshall in the Schooner Ex-
change :
"A third case inwhicha sovereignis understoodto cede a portion !
of Risterritorialjurisdictiolzis, whenhe allowsthetroopsof a joreign
princeto $ass throughhis dominions.
In such case, without any express declaration waiving juris- ,
dictionover the army to which this right ofpassagehas beengranted,
the Sovereign who should attempt to exercise it would certainly i
be considered as violating his faith. By exercising it, the purpose
for which the free passage was granted would be defeated, and a
portion of the military force of a foreign independent nation would ,
be diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control ofthe sover-
eign whose power and whose safety might greatly depend on
retaining the exclusive command and disposition of this f+orce.
The grantof free $assage thereforeim$Eiesa waiverof all jurisdzctzon
overthe troopsduring their $assage,and permits the foreigngeneral '
do use that discipline, and to inflict those punishments which the
Governmentof his army may require."
By wsÿ of comment upon this passage, Barton emphasizes that the i
Chief Justice was there referring to the case of the transit o#foreign
troops throztgha territory, not to the case of foreign troops visiting
and sojourning in a territory. Barton certainly diçtinguishes the case 4
of troops in transit from that of visiting troops and goes on to point
out that in some later cases wider interpretations have been put . REJOINDER OF INDIA (II59)
258
upon the language of Chief Justice Marshall than his words justify.
But he cornplains of the later interpretations of the judgment in the.
Schooner Exchange only in so far as they read into it authority for

the pnnciple that foreign troops present in a State's territory are
ioially exempt from the local jurisdiction and not merely with +
respect to their internal discipline. His own conclusion is clear that
international law recognizes the immunity of foreign troops from
the "supervisory" jurisdiction of the local courts, whether they are
"visiting" forces or merely forces in transit. Thus, at theend of the
articIe (pages 411-3 he says:
"The earliest formulation of the principle underlying the immu-
nity of visiting forces from the supervisoryjurisdiction of the local
courtswas made by ChiefJustice Marshallin The SchoonerExchange
v. M'Faddon. In that case the jurisdictional immunity of troops in
passage was joined with the similar immunity for sovereigns and
diplomatic representatives to fqrm a cogent argument for granting
jurisdictional immunity to the public armed vessels of a friendly
foreign state. It would appear from the reasoning of the Court that
the basis of immunity in al1cases was the same fundamental pnn-
ciple that the absolute jurisdiction of one state does not envisage
the sovereign rights of another state asits object. However satis-
factory this principle may beas abasis for sovereign and diplomatic
immunity,therearestrong reasons oftheory and practice forseeking
a more solid principle on which to base the jurisdictional immunity
of visiting forces. It is, for instance, difficult to appreciate how the
fact that a local court entertains an action for false imprisonment
brought by a visiting soldier against his superior officerconstitutes
a violation of the sovereign righof a foreign state. The beginnings
of the modern principIe can be discerned in Marshall's judgment
wkere he shows the incom$atibility betweenthe grlantofa passage to
foreign troofis arzdthe exerciofsupervisory jztrisdiction ovthem."

And he then states that from the evidence examined in the article,
the following rule of international law may be formulated:
"The consent of a state to thpresencein itsterntory ofthe med
forces of a friendly foreign State implies an obligation to allow the
service courts and authorities of that visiting force to exercise
such jurisdiction in matters of discipline and internal administration
over members of that force as are derived from their own law. The
permission to exercise this jurisdiction effectivelyimplian obliga-
tionto seczkvethe immunity of the visiting forces from thesupemisory
jzcrisdictionof the localcozlrts."

512. In the light of the passages cited above it is plain that the
Government of India was absolutely justified in citing Barton's
article in Volume 26 of the Year Book as evidence of the existence of
a customary rule, according to foreign troops in transit immunity
from the "supervisory" jurisdiction of the local courts.
513- That the Government of India was also absolutely justified

in its reference toBarton's second article in the next volume of the
Year Book is no less plain. It referred to that article simply as evi- dence that there is even some authority for the view that foreign !
troops in transit are entitled to a totalimmunity from the local crimi-
na1jurisdiction. At the same tirne, it said that this view was contro-
versial and that the legal regime of foreign troops is a matter of such *

delicacy that in practice it is always covered by express agreement.
Barton's second article, like the first, is directed primarily to the I
question of visiting forces. But a number of the authorities which he
discusses relate to troops in transit.mongst these, of course, is the
judgment of Chief Justice Marshall in the Schooner Exchange, but
he also deals with other cases and discusses, for example, the very
strong pronouncement of the Supreme Court of Panama in the case 1
of Schwarlzfiger:

"It is a principle of international law that tmed .forceof one
State,when crossingthe territoryof anotheïfriendly country,weiiththe
acquiescenceof the latter,isnot subject to the jurisdiction ofthe
territorial sovereignbut tothat of theofficersand superior author-
itiesofits own command."
Barton's own conclusion is that such pronouncements are too
widely expressed and that the true rule is that the customary
immunity of foreign troops is limited to immunity in matters of
interna1 discipline and does not include a total immunity from the
local jurisdiction. In reaching this conclusion he notes that the

matter is covered by express agreement in a largenumber ofmodern
treaties and that some of these treaties, more especially those to
which the United States is a party, do provide for a measure of
immunity from the local jurisdiction. He considers, however, that
the treaty practice taken as a whole confirms that customary inter-
national law, while recognizing that foreign troaps have immunity
/rom szcpervisoryjztrisa'ictiotz, does not recognize that they have a
total or general immunity from the local jurisdiction.

514. Barton, the Government of India ernphasizes, represents the
most conservative school of thought on this question. It had been
hoped, by citing a recent study by a writer taking the minimum
view of the immunities possessed by foreign troops, to spare the
Court a lengthy digression into the law governing the immunities
of armed forces. The Government of India could equally well have
referred to other writers who state the matter in a way much more
favourable to India's argument. It might, for example, have refer-
red to two articles in the American JoztrnaE of International Law by
Colonel King, who argues in favour of the total immunity of foreign
troops from the local jurisdiction (see American JotcrnaEof I?zter-

national Law, Volume 36, 1942, page 539, and Volume 40, 1946,
page 257). Or it might have referred to the opinions of numerous
writers such as Wheaton, Hall, Westlake, Oppenheim and Law-
rence, who took quite a large view of the immunities of foreign (
troops, as the following extracts from Oppenheim and Lawrence
will show:260 REJOINDER OF INDIA (II 59)
"Whenever armed forces are on foreign territory in the service
of their home State, they are considered exterritonal and remain,
therefore, under its jurisdiction. A crime committed on foreign
territory by a member of these forces cannot be punished by the
local civil or military authonties, but only by the commanding
oficer of the forces or by other authorities of their home State.
This rule, however, applies only in case the crime is committed,
either within the place where the force is stationed, insomeplace
where the criminal was on duty; it does not apply if, for example,
soldiers belonging to a foreign garrisoof a fortress leave the rayon
of the fortress, not forduty but for recreation and pleasure, and
then and there commit a crime. The local authorities are in that
case competent to punish thern."
(Oppenheim, Internalional Law, 1948, 7th ed., Vol. 1, Sec.445.)

"... The universally recognized rule of modern times is that a
State must obtain express permission before its troops can pass
through the territory of another State.. .Permission may be given
as a permanent privilege by treaty for such a purpose assending
relief to garnisons, or it may be granted as a special favour for the
generally contains provisions for the maintenance of order in the
force by its own officers,and makes them, and the State in whose
service they are, responsible for the good behaviour of the soldiers
towards the inhabitants. In the absence of special agreement the
troops would not be amenable to the local law, but would be under
the jurisdiction and control of their own cornmanders, as long
as they remained within their own lines or were away on duty, but
not otherwise."

(Lawrence, PrilacZ$Ee O/ InternationalLaw, 6th ed., p. 246.)
515. The Government of India, however, still believes it to be
quite unnecessary for the Court to investigate the limits of the im-
munities enjoyed by foreign troops in transit through a State's

territory. For the discussion of the issues raised in the present case
it suffices that, evenonthemost conservativeestimateof the immutzities
of ioreign armed forces, troops in transit possess under czcsto~narylaw
some measztre O/ immzinity from the exercise of the Localsovereign's
jurisdiction. Thus, even taking the minimum view expressed by
Barton, Portugal's formulation of her alleged right of transit for
her armed forces conflicts with the relevant customsry law.

516. No less extraordinary is the Portuguese Government's other
observation on this point in paragraph 23 of the Reply. At the end
of that paragraph it says that, even if Portuguese troops in transit
between Daman and the enclaves are entitled, by customary law,
to immunity from jurisdiction in questions of discipline, that is
immaterial, because a right to immunity does not forrn any part
of the Portuguese clairn in the present case. If the immunity point
is really so wholly immaterial as Portugal says, the Court may
well wonder why she finds it necessary to protest on almost every

other page of her pleading that the right of transit, which she claims, REJOINDER OF ISDIA (II59) 261

is a bare right of transit without any imrnunity at al1 from the
cxercise of India's sovereignty. In fact, as the Court knows, it waç
Portugal herself who brought this point into the discussion. India
haç relied on the principle that a right of transit across another
State's territory, being a Iimitation upon, or derogation, from the
State's exclusive territorial competence, is only estabIished by ,
clear and unambiguous proof of the consent of the territorial '
sovereign. Portugal has sought to escape from the difficulty by

asserting that she only clairns a right of transit ~vithoutirnmunity, '
and by arguing that such a bare right of transit does not constitute
ü "dismemberment" of India's sovereignty, and does not fa11within
the .above principle at all. India has replied that a right of transit
for foreign troops, which inevitably involves some immunity from ,
the local jurisdiction, is, above all, a case of transit with immunity
and one which is quite unknown without the clear consent of the :
territorial sovereign. But it was the Portuguese Government itself '
which made the absence of any immunity from India's jurisdiction

the central point of the argument on this question, and it really :
wi1lnot do foi-Portugal now to Say that the point isimmaterial so ;
far as concerns the transit of armed forces. Not only is the point
material, it is fatal to the Portuguese argument on this question. :
517. A strongfeature also of Part 1of the Reply is the effort made
by Portugal to rninimize the impact of the rights of transit which

she claims upon India's territorial sovereignty. She declares that
she does not claim "access" to Indian territory, but only "transit",
and protests tliat there is a great deal of difference between a right
of "access" and a right of "transitJJ in the impact which they
make upon the territorial sovereignty of the servient State. She ,
states that in "transit", as distinct from "access", the exit from the 1
territoryis as important as the entry, and that, under the right '
which she daims, "Indian territory is no more than a route for
passing between Daman and the enclaves and vice versa". In answer I

to India's point that no customs or security cordon has ever been '
maintained around the enclaves or along the transit route, so that
transit to the enclaves means in practice access to Indian territory,
al1she says is that this does not affect the nature of her claim as a
claim to transit and that it is up to India to remedy that situation .
if she wants to.
I 1
518. Nobody doubts that there is a distinction between "access" :
and "transit". But the question is whether that distinction is in any
way material in regard to the issues raised in the preserit case and !
that is a question ~vhichis never really faced by Portugal.
519. The Government of India has dready pointed out in para-
graphs 247-257 of its Counter-Mernorial some of the implications for

India ofthe rights of transit claimed by Portugal, and asks the Court
to refer again to those paragraphs. No amount of subtlety and in-
genuity can get rid of the hard fact that what Portugal is claiming262 REJOINDER OF INDIA (II 59)

is a right to use a piece of Indian territory for a particular purpoçe
and to use itrepeatedly and perpetually. Interference with India's
own uses of that territory and with the exercise of Indian sover-
eignty with respect to that territory follows inevitably, if Portugal

is held to possess legally enforceable rights of transit. Inevitably
also there follows an additional risk to India's customs system
through smuggling of goods and an additional risk to India's
security system through illicit entry of perçons. Portugal makes
light of these risks to India's sovereignty, but history has shown
that they are considerable. What does Portugal suggest should be
done in this connection? She suggests that India çhould maintain
a customs and police cordon round the enclaves which would not
only be a heavy expense to India but a serious nuisance to the
peoples of the enclaves. Portugal's other suggestion, that India
should take steps to protect herself dong the transit route, is even
worse. For how could India protect herself adequately except by

constructing a high fence al1 dong the route from Daman to the
enclaves-like the high wire fence that lines each side of the route
between the city of Bâle and the airport of Bâle situated in French
territory? Such protecting fences would sever India's own territory
between Daman and the enclaves into two pieces; and the whole
rnatter is made more complicated by the existence of a main-line
railway which runs through Vapi.

520. Portugal finally tries to get rid of the point altogether by
saying that, whatever difficulties of this kind India may have, they
in no way alter her obligations vis-à-vis Portugal. This statement
completely begs the question. If it had been established that India,
or the British Government before her, had unequivocally agreed to
allow to Portugal a legal right of transit, then the fact that these
difficulties resulted for India would doubtless not alter her obliga-
tions under the treaty.But that is not thposition at all.The position
is that Portugal is seeking to deduce from an ancient treaty, from
friendly concessions of transit facilities, and from general principles
of law, a right of transit that was never at any time expressly
granted or: recognized during the whole of the long period under
discussion:In the submission of the Government of India, the fact

that the right of transit claimed by Portugal would involve these
kinds of consequences for India, is very material in considering
whether the deduction which Portugal asks the Court to make
from the 1,77 T9reaty, from the historical facts of the British period
and from general principles is one that can be made legitimately.
And the answer is plainly, no.
521. In paragraphs 21 and 22 of the Reply, Portugal complains

that India has exaggerated the question of the uncertain scope of
Portugal's claim to a right of transit for "armed forces" by suggest-
ing that it may cover "regiments" and "army corps". But there
was nothing exaggerated or fanciful in India's posing of the question. REJOINDER OF INDIA (1159)
263
India merely set out the possible forms of a right of transit for
"armed forces" in order to show the vagueness and uncertainty
inherent in Portugal's claim; and it is interesting to observe just
how far PortugaI has gone in answering India's question.

522. India asked in paragraph 255 of the Counter-Memorial: "1s
the alleged right of transit, for example, confined to sending indivi-
duai members of the arrned forces and police or, at most, small
squads across Indian territory? Or does it extend to sending whole
platoonç, companieç, regiments or corps of troops and police? If
transit is indecd 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, arrnoured cars and
ammunition ?"
523. PortugaI has made two commentsupon these questions. First,

she has called the reference to "regiments" and "army corps" pure
fantasy. She is silent about "platoons" and "companies" and about
the numbers that may pass at a time.Are we therefore to understand
that she does not regard these as pure fantasy and claims the right
to send through a "platoon" or a "company" in a body? She is
silent about artillery, tanks, armoured cars and ammunition. Does
this mean that the transit of these things is not considered to be
pure fantasy and that Portugal claims a right of transit in regard to
them? Portugal's second comment is that she is not asking for a
new regime but merely for a continuation of the system that has
laçted since the eighteenth century. And she adds: "During this long
experience has there ever been one case of a deployment of forces

comparable to the one which the Counter-Memorial is pleased to
describe?" Does this mean that the alleged right of transit is
limited to the largest number of men for which there is some past
precedent, and to the kinds of weapon and equipment which have
been allowed to pass on some previous occasion? Or does Portugal
want to keep open the possibility of sending all the forces and arms
necessary on this occasion to re-establish Portuguese sovereignty
by force ?

524. Portugal seems to imply that India was not being serious
when she asked these questions. But India was entirely serious. In
the case of any enclave-and most certainly in the circumstances of
the present case-these are very gravequestions for the Sovereign of
the intervening territory, They are questions so grave that it is
natural to expect the answers to thern to be set out with some
precision in an agreement between the Sovereign of the enclave and
the Sovereign of the intervening territory. The fact that, in the
present instance, the scope of alleged rights of transit for Portu-
guese armed forces and police is not to be found defined or even

indicated anywhere in any form of agreement between Portugal and REJOINDER OF INDIA (11 59)
264
the territorial sovereign, appears to the Government of India to
be a powerful argument against the existence of any such rights.

525. Portugal, on the otherhand, takes the rather extraordinary
position in paragraph 24 of her Reply that the lack of precision in
regard tothe scope of her alleged rights of transit is entirely natural.
For she there says:

"The Portuguese Government does not contend that the exercise
of the right which it is now claiming is governed in al1respects by
precise rules or that the implementation is sota speak mechanical.
Far from that: there is indeed no doubt that these rules are open
to a rather broad power of appreciation. But situations of this kind
frequently arise in the fielof international law. International law
rarely lays upon States the obligation to take clearly defined
concrete measures. In most cases international law rnereIy states
their obligationsina very broad manner in order to enable thern to
adapt their municipal law to those obligationshaving regard to the
circumstances."
526. She then proceeds to illustrate her point by reference to the
rule of "due diligence" inthe sphere of the international responsibi-

lity of States for damage caused to foreigners by private persons.
"Can it be said", asks the Portuguese Government, "that this crite-
rion (of due diligence) is more precise than the one. to which the
right claimed by Portugal refers?"
India does not dispute that in some spheres there is less precision
in the rules of international law than is usually found in municipaI
law. But the rule of "due diligence" belongs to an entirely different
branch of international law from the question of transit with which
the Court is concerned in the present case, and the reference to it
as an example of the imprecision of international law does not seem
to be at al1apt. As with negligence in municipal law, the veryground
of liability under the mle of due diligence is a failure to show such
reasonablc diligence in the proscciltion of a crime as would normally

be shown by a normally organized State. In the present case, how-
ever, the question is whether Portugal has a right to use India's
territory for the purpose of passage to the enclaves and, if so, what
are the conditions for its exercise. This, the Government of India
submits, is an entirely different lcind of question from the question
of due diligence. Can Portugal really be serious when she contends-
as she apparently does-that, in the present case, India's alleged
obligations to Portugal with respect to the transit of Portugiiese
armed forces and police between Daman and the enclaves, are simi-
lar in nature to the obligation of a State to show due diligence in the
prosecution of a crirninal who has injured a foreigner? Can Portugal
really be serious when she suggests that the passage of armed forces
across another State's territory is a mattcr which international law

may be expected to deal with in an imprecise manner and to leave
largely undefined? These propositions have only to be statcd for REJOINDEK OF IXDIA (II 59) 265

their absurdity to be apparent. Is it not rather the case that pas-
sageacross another State's territory, and especially for armed forces, ,
is a matter which it is natural to find made the subject of a treaty
and to be rcgulated in some detail? 1s not a general, undefined,
obligation to allow the passage of the armed forces of another
State an obligation which is inconceivable in internationaI law ?.

527. Kor is the Portuguese claim made any less inconceivable by
saying, as Portugal does Say in paragraph 22 of the Reply, that
India's obligation is not to be regarded as consisting of an obliga- i
tion to allow troops to pass over territory, but rather of an obligs-
tion not to oppose any obstacles to the passage of what is necessary
for the exercise of Portuguese sovereignty in the enclaves. It is by
this argument that Portugal tries to turnthe issue in the case inside
out-to present the legal issue as one concerning the question :
whether India is under an obligation not to oppose the passage of

Portuguese troops, rather than the question whether Portugal kas l
an established title to rights of passage over India's territory.
Every legal right can be expressed correlatively in terms of the
corresponding obligation. Portugal, however, cannot alter the :
essential nature of the alleged right which she claims, by the simple
yrocess of asking the Court to view the legal relation, alleged to ,
exist between herself and India, in terms of the corresponding
obligation alleged to lie upon India. No mere dialectics, however
skilful, can change the fact that, in the present case, Portugal is
1
cIaiming a right to use a strip of India's territory repeatedly for the
purpose of passing persons and goods to and fro across it. REJOINDER OF INDIA (II 59)

Part III

THE LAW APPLICABLE TO THE PORTUGUESE CLAIM

528. In Part IV of the Counter-Mernorial the Government of
India cited a number of passages from judicial decisions and from
the works of jurists as establishing two rules:

(1) power to exercise the normal rights of sovereignty within itsull
own tenitory, andagainst the existence of limitations upon that
power.

(2) This presumption in favour of the temtonal State is only to be
its specific consent to the particular limitation to which its
power to exerciseits sovereigntis allegedtobe subject.

And, on. the basis of the above rules, the Government of India
submitted that a heavy burden of proof rests upon Portugal to
establish,by clear and unambiguous evidence, the specific consent
of the Sovereigns of the temtory lying between Daman and the
enclaves to the rights of transitclaimed by her in this case.

529.In Part III, Section 1,of the Reply, Portugal has sought to
rebut India's contentionsin regard to the burden of proof, first, by a
general argument concerning the relation between rules of inter-
national law and State sovereignty and, secondly, by certain
observations in regard to the authorities cited by India.

530.Portugal's general argument runs as follows. The effect of
most rules of international law is to lay obligations upon States,
whether they are rules derived from treaty, custom or general pnn-
ciples of law, and this is no less true when territorial sovereignty is
invoIved than in other cases. Indeed, the limitations upon sover-
eignty resulting from international legal rules are most frequently
felt in the sphere of territorial jurisdiction and by no means al1of
them derive from treaty. For example, the treatment of foreigners is
a matter of customary law and of general principles of law, as well as
of treaties. How then can India Say that the rights which Portugal
clairns could riot have come into existence without the specific
consent of the territorial sovereign?

531.This argument really does not seem to touch India'ç proposi-
tions concerning the burden of proof. India has never contended that
the nature of international law or of State sovereignty renders it
impossible, in principle, for rights of transit to arise from custom or REJOINDER OF INDIA (1159) 267 ,

general principles of law. India's contention is that, if you look at ,
international law as it has in fact developed, you will find that there
are certain kinds of limitation upon State sovereignty-limitations
involving derogations from the State's exercise of its territorial
sovereignty, and the enjoyment by another State of rights with
respect to the territory itself-which can only be established by
clear proof of the çpecific consent of the territorial sovereign. India
may well reply to Portugal's question with another. How does
Portugal think that she answerç India's contention by dragging into
the discussion quite different kinds of limitation upon sovereignty,
such as the obligation to observe international minimum standards

in the treatment of foreigners? The Government of India can scarce-
ly believe that Portugal is serious in representing that, juridically,
there is no difference at al1between a particular obligation to allow ,,
the troops of a particular foreign State to enter and make passage
through the territory of the State, and a general obligation to ob- ,
serve minimum standards in the treatment of any foreigners within
the territory.

532. The Governrnent of India has no need to labour the point
because it seems perfectly clear that Portugal herself admits that
there is a category of rights in or affectinganother State's territory, ,
the establishment of which requires stricter proof than is required I
for international rights of other kinds. Why else has Portugal gone to
such pains in paragraphs 12-14 and again in paragraphç 291-305 of
the Reply, as she did previously in the Memorial and in the pro-
ceedings on the Preliminary Objection, to press on the Court a

distinction between, on the one hand, limitations involving the
participation of a foreign State in the exercise of the territorial .
sovereignty (paragraph x3)and, on the other limitations involving
a derogation from the very principle ofsovereignty (paragraph 299) ?
Portugal, in short, does not seek to counter India's contention by :
denying that there is a category of territorid rights the establish-
ment of which requires proof of the specificconsent of the territorial i
sovereign; she rather disputes India'ç definition of that category
and seeks to exclude from it the rights which she..claims in the !
present case.

533. If one looks closely into Portugal's argument on this point, it ,
becornes obvious that what she really does, is to invite the Court to
hold that the class of territorial rights, requiring strict proof of the
consent of the territorial sovereign, is limited to so-called "inter-
national servitudes", and to adopt the narrowest possible definition
of an international servitude. In paragraph 12 and again in para-
graph 296 of the Reply, she once more draws attention to the North
AtlnnticFisheriesArbitration, where the United States claimed that
a grant, by treaty, of rights of fishery to its nationals necessarily
implied also a nght for the United States Government to partici-

pate with Canada in the legal regulation of Canadian fisheries. The REJOINDER OF ISDIA (II59)
268
Tribunal in that case, she says, cstablished a sharp and esscntial
distinction between an obligation upon a territorial sovereign to
submit to the participation of a foreign State in the exercise of its
sovereignty and an obligation upon a territorial sovereign to sub-

mit to restrictions on the exercise of its sovereignty. While men-
tioning the controvcrsial character of the theory of "international
servitudes", she underlines that one of the most authoritative
writers has expressed the view that the grant of a right of sover-
eignty in some form or other is an essential feature of an "inter-
national. servitudeJJ. In short, she defines "international servitude"
in the nsrrowest terms, including therein only rights to exercise
sovereignty or to share in the exercise of sovereignty in regard to
another State's territory. She then insists that the rights of transit
which she claims are not rights to exercise or share in the exercise
' of India's sovereignty, but are merely rights which oblige India to .

exercise her territorial sovereignty on certain principles in favour
of Portugal. She maintains that her alleged rights of transit affect
India's territorial sovereignty only in the same Lvayas the right of
a State to require India to treat its natiunals in accordance with the
"minimum standards" for the treatrnent of foreigners. India's sover-
eignty, she says, is not "disrnernbered", it is merely a "compétence
Liée ;"and she charges India with failing to distinguish between "une
répartition de compétence" and "une compétence liée". Following
this line of reasoning, she asks the Court to hold that her alleged
rights of transit fa11quite outside the principle demanding strict
proof of the agreement of the territoria1 sovereign to the creation of
riglits in or over its territory in favour of another State.

534. Portugal never tires of informing the Court in her Mernorial
that the theory of international servitudes is "une théoriefumeuse
et >ncohérente"and that she would like nothing better than that it
should be totally excluded from the case. Yet here, under the
thinnest of disguises, she is asking the Court to adoyt her own
particular definition ofinternational servitudes, and to apply it, for

the purpose of determining whether her alleged rights of transit
are subject to strictproof of the agreement of the territorial sover-
eign. The idea that the ambit of the term "international servitude",
and the question of a "dismemberment" of sovereignty are of
importance for determining this question is, however, a complete
fallacy. Portugal quite arbitrarily assumes that the class of rights
affecting a State's territorial sovereignty, with regard to which
strict proof of the agreement of the territorial sovereign is required,
is confined to "international servitudes" as she herself defines inter-
national servitudes. That is not the case at all.

535.It is true that rights in or over another State's territory are
frequently dealt with in the authorities under the rubric "inter-
national servitudes". The reason seems to be that most jurists find
irresistible the temptation to discuss a possible analogy in inter- REJOINDER OF INDIA (II 59) 269
national law to the servitudes of private law. It is certain that,

when they do so, they do not al1 have in mind the same notion of
a servitude. To lawyers frorn common law countrics, for example, '
the term servitude has a much wider connotation than that given
to it by Portugal. The varying definitions of "international servi-
tudes", however, are quite irrelevant in the present connection.
The only point that matters in the present connection is that rights
of transit, and notabIy rights of transit for armed forces, are uni-
formly included by jurists in the class of rights affecting a State's

territory, with regard to which strict proof of the agreement of the
territorial sovereign is required. The fact that these rights may
often be discussed undcr the rubric "international servitudes" is !
merely of academic interest, For the need for strict proof of the
agreement of the territorial sovereign to the creation of such rights
is not a deduction from any particular concept of servitude. It is
a deduction simply from the fact that they are particular rights
in or over another Statt's territory involving limitations upon its

normal rights of territorial sovereignty.
536. Oppenheim-Lauterpacht, in the passage cited in paragraph
272 of the Counter-Mernorial, ~vr~tes:
i
"State servitudes are those exce9tionalrestrictions made by lreaty ,
on the territorial supremacy of a State by which a part or the whole
of its territoryis in a Zimited wuy made+er$et%alE ty sem a cardain
purposeorinterestof anotherStale.Thus a State may by a convention :
be obliged to allow the passage O# troopsof a neighbouring State ... '
Since the object of State servitudes is the territory of a State,
such restrictions upon the territorial suprernacy of a State as do
not make a part or the whole of its territory itself serve a purpose
or an interest ofanother State are not State servitudes. The territory
as the object is the mark of distinction between State servitudes .
and other restrictions on the territorial supremacy."
The Government of India does not aslc the Court to prefer the
Oppenheim-Lauterpacht definition of international servitudes to ,

the definition favoured by Portugal. It asks the Court to disregard
the terminological controversy about the definition and simply to
take note that the passage of troops-and indeed other rights of
transit-are classed by Oppenhcim-Lauterpacht as rights in or
over territory which are created by treaty.

537. In the same way, al1the other tvriters mentioned in paragraph ,
164 of IndiaJs Preliminary Objection-Sibert, Crusen, Vali and Reid
-class rights of transit as "international servitudes", and enlphasize
that such "international servitudes" are created by treaty. Por- ,
tugal has made no attempt to contradict the views of those writers
on this point.

538. The Government of India has not, however, been content .to '
cite only the opinions of jurists. It has alço supported its proposi-
tion by a number of passages from judicial decisions. Portugal has
19 REJOINDER OF INDIA (1159)
270
made some remarks in regard to these decisions in paragraphs 295-
301of her Reply. Her remarks do not appear, however, to diminish
in any wsy the individual or collective weight of the decisions relied
on by India and, as the Court is already fully seized of India's
point of view in regard to them, the Government of India docs
not find it necessary to embark on a fresh discussion of them.
It will content itself with brief observations on two of the remarks

made in the Portuguese Reply.
539.The first is thit idificult to appreciate the distinction Por-
tugal makes in paragraph 299 between the "limitation upon the
exercise of territorial sovereignty", which she says is found in the
present instancc, and the "derogation from the very principle of
sovereignty" whicli the grant of diplomatic asylurn to Haya de
la Torre is said to constitute, "the Colombian Government having
thereby removed the offender from the justice of Peru". The right
of a State to authorize or refuse entry into, or transit across, its

territory is no less a matter of its discretion than the right to take
measures for the punishment of crime. Both the former and the
latter rights are matters within the exclusive jurisdiction of the
State, except in those cases in whick it may have consented in a
general treaty or a particular agreement to those rights being made
the subject of legal regulation, and except in the rare case where
they have been brought under the regulation of an unwritten rule
of i~iternational law.

540.Similarly, it seems to be an obvious mistake, in paragraph 295
of the Reply, to interpret the decision of Chief Justice Rlarshall in
the case of the SchoonerExchange(see paragraph 260 of the Counter-
Rlernorial), as relating to the exclzjsive character of territorial juris-
diction and not to its discretiotzarycharacter, when the two terms
are usually employed as synonyms. And the artificial distinction
which Portugal attempts to make, seems to be al1the more mistaken
, when it is rernembered that the Chief Justice described the Stste's
territorial jurisdiction as "exclusive and absolute", and cxpressly
rejected any limitation upon or derogation from it which does not
have its basis in the consent of the State in question.

541 .or is it to be overlooked that, even if the distinction made by
Portugal were to be accepted as valid, she would still not succeed
in excluding her own claim from the category of territorial rights
requiring strictproof of the consent of the territorial sovereign.
For, as has been pointed out in the previous Part of this Rejoinder,
the rights which she claims do in fact involve some measure of
immunity from India's territorial jurisdiction-do in fact involve
a derogation from the very principle of sovercignty.

542.Accordingly, the Government of India adheresmost firmly to
its opinion that certain kinds of right in or over anothcr Statc's
territory are only to be established by clear proof of the consent REJOIPI'DER OF INDJA (11 59) 271 ,

of the territorial sovereign, and that the right of transit claimed
by Portugal is a right of that kind. Having reaffirmed its position
on this point, however, it repeats what it said at the outset, that
it bases its opinion, not on any theory of the impossibility of such
a right having been created in general international law, but on

the actually existing system of international law. It wiII, therefore,
now proceed to demonstrate the correctness of its contention, by
shoiving that there is no trace of any general right, of the kind
claimed by Portugal, in any of the sources of general international
law enumerated in Article 38 of the Statute of the Court.

II, ABSENCE OF ANY GEKERAL RULE RESTRICTING TERRITORIAI,
SOVEREIGKT IN REGARD TO TRASSIT BY ROAD ,

A. Absence of any General Coîzvention

543. The Government of India, on setting out to demonstrate the ,
non-existence of any general rule concerning the right of passage ,
by land between the metropolitan territory of a State and the
territory of an enclave also undcr its sovereignty, began by con-
sidering the first of the sources of international law enurnerated in
Article 36 (1)of the Statute of the Court. And it believed that it '
had effectively shown that no such general rule uras to be found '

written into any international convention.
544.The Government of India is glad to observe that its conclusion

on this point has not been contradicted by the Portuguese Govern-
ment. It feels justified, however, in underlining the point here a
little further because a rathcr sirnilar question has been studied,
if not dealt with exhaustively, in the very recent Geneva Maritime
Conference of 1958. That Conference agreed upon the insertion of
the following provisions in Article 3 of the Convention on the
High Seas: -

"1. In order to enjoy the freedom of the seas on equal terms
with coastal States, States having no sea-coast should have free
access to the sea. To this end a State situated between the sea and
a State having no sea-coast shall by common agreement with the
latter and in conformity with existing international conventions
accord :
(a) to the State having no sea-coast on a basis of reciprocity, free
transit through their territory, and
(b) to ships flying the flag of that State treatmentequal to that
accorded to their own ships, or to the ships of any other States,as
regards access to sea ports and the use of such ports.

2.A State situated between the sea and the State having no
sea-coaçt shall settleby mutual agreement with the latter, and ta-
king into account the rights of the coastal State or State of transit
and the special conditions of the State Paving no sea-coast, al1
matters relating tofreedom of transitand equal treatment inports,272 REJOINDER OF INDIA (11 59)
in case such States are not already parties to existing international
conventions."

545.One could debate at some length the precise scope of this Ar-
ticle, sofull is it of reservations. For present purposes, however, it
suffices to note that the obligatory force of its provisions will not
extend beyond the States that rnay ratify the Convention; and
that, on this particular point of a right of access over intervening
land to the sea, there is no authority for theew that any custon~ary
right existed prior to the Convention under any rule binding upon
the general body of States.
546. It is also worth observing that when the Article deals with

"access to the ses" or with "free transitJ', it does not specify what
perçons or property are to be the beneficiaries of the right of access
or transit but leaves these matters to be defined by common agree-
ment between the States concerned. It is evident, howevcr, that
the Conference had in vicw normal peaceable traffic tothe exclusion
of the transport of military forces and of arms in time of war or
civil war.
547.The Portuguese Government, no doubt, will contend that it is
not possible to assimilate the case of States deprived of access to
the sea or of bridgeheads (see paragrayh 310 of the Reply) to that
of a State cut off from a part of its territory enclaved within the

territory of another State. But the Court, it is believed, will not
be slow to find that Professor Bauer was right in thinking that he
could draw an analogy between these different situations (see Annex
25 of the Observations on the Preliminary Objection at 1, pp. 762-
763). This being so, the fact that international Iaw does not recog-
nizc any right of transit for landlocked States across intervening
territory to the sea, independently of the provisions of the Geneva
Convention of 19j8, seems to the Government of India to be a
somewhat serious objection to the Portuguese thesis that general
internationallawdoesrecognize a right of transit to enclaves, despite
the absence of any international convention establishing such a
right.

B. Absence O/any GeneraECttstornnryRule
548.Article 38 of the Statute gives a definition of custom in inter-
national law which is so clear that it would appear to rule out any
discussion as to the conditions necessary for the existence of a

custornary rule of Iaw: "Custom as evidence of a gencral practice
accepted as law" ("znze Pratique généraleacceptéecomme étafzEe
droil"). It would scarcely be possible to indicate more clearly the
characteristics of this source oflaw and the two separate elemznts,
one material and the other psychological, the combination of wliich
the Statute requires if a legal custom iç to be established.Never-
theless, in regard to the alleged custornary rule invoked by Portugal
in support of her clairn, there appears in the present case to be REJOINDBR OF INDIA (11 59) 273
complete disagreement between the two Governments as to the
existence of either the one or the other of the two elements.

549. First, as regards the question of a general practice, thePortu-
guese Governrnent has certainly obtained an interesting opinion
from Professor Bauer, Professor of History at the University of
Neuchâtel. But the researches of the learncd Professor go far
outside the actual point at issue, namely, the passage of armed
forces by road across foreign territory. And, as the Govern-
ment of India has previously observed in paragraph 291 of the
Counter-Memorial, he has done no more than collect together,

on the one hand, old treaty provisions which expressly or impliedly
contain a grant of permission for the passage of troops to and from
a fortress and, on the other hand, modern treaty provisions or
situations relating exclusively to the passage of civilians or of
non-military goods. At first sight it really seems inconceivable that
the existence of a general customary rule, covering al1the formç of
transit between a State and its enclave as are deemed necessary
by that State, could be deduced from the purely local "practices"
mentioned by Professor Bauer, aImost al1of which exhibit both sub-
stantial differences in their circumstances and conditions and are
confined to particular forms of transit.

550. Yet that is exactly what the Portuguese Government does at-
tempt in paragraph 318 of the Reply to deduce from Professor
Bauer's material. Its reasoning runs as follows. It is quite true that
the regimes of the enclaves described by Professor Bsuer Iack
uniformity. It could scarcely be otherwise "since the geographical,
political, economic and social conditions to which they must adapt
themselves differ matcrially". But from thesc varying regimes there
is, nevertheless, to be extracted a basic customary rule, namely, that
India is under an obIigation to allow Portugal "the communications

essential for the exercise of her sovereignty of the enclaves". As
to the conditions of this passage, howevcr, the Portuguese Govern-
ment i~zno way claims that they are fixed by any international rule;
on the contrary, it declares that it recognizes that in this regard
the Indian Union is "free to exercise its territorial jurisdiction".
Quite spart fronl the objections which the Government of India
has formulated in Part III of the Counter-Memorial and in the
preceding Part of this Rejoinder with respect to the imprecise
character of the Portuguese claim, it feels bound to challenge the
extraordinary method used by Portugal to establish a rule of
customary law. The Government of India cannot admit that for
the elements of a general practice followed by different States and

recognizing the rights claimed by PortugaI, it is legitirnate for her
to substitutea skeletal principle, alleged to be derived from a general
practice, and then to deduce from it much wider corollaries that
are manifestly not to bc found in the great majority of the practices
from which the principle itself is said to be derived.274 REJOINDER OF INDIA (II59)
551.That, however, is precisely what the Portuguese Government

is doing when it seeks to deduce, from an alleged general practice, a
rjght for every State, possessing an enclave in foreign territory, to
despatch an armed force there across the intervening foreign soil.
For, in the Annexes produced by Portugal, one looks in vain for any
documents or evidence which could possibly establish the existence
of such a right in regard tothe Severienclaves Iisted in paragraph51
of Portugal's Memorial.
552.'Tot onlyis there no indication of any such right in the docu-
ments published by the Portuguese Govcrnment (Annexes 21-24)?
but in the sole case where the question of miiitary passage seerns to

have been raised, it has been aiiswered in the negative. For it has
already been pointed out in the Counter-Memorial (paragraph
293 (c)), that during the first world war the Netherlands did not
authorise the passage of German troops over their territory to the
Belgian enclave of Baarle Nassau from neighbouring Belgian terri-
tory, which was under German military occupation. Tliis fact has
been left without any comment in the Reply. It is, however, a fact
which is al1the more significant in that there was in that enclave a
broadcasting station, which served for the transmission of messages
both for the civil population in Belgium and for the military intelli-
gence services of the Allies.t no time does the idea appear to have
been entertained that, the enclave being the accessory of the
occupied Belgian territory, the occupying Power was entitled to be

placed in the position of having access to it.
553.In addition,it is to be noted thatinmostofthecasesmentioned
by Portugal, the rights of passage accorded by the States coiicernecl
have been accorded in virtue of particular conventions and that the
real title tothose rights isto be found in the respective conven-
tions. The cases in question cannot, therefore, be properly invoked
for the purpose of proving the existence of a general customary rule.
This objection tothe Portuguese argument was pointed out in para-
graphs 291-29o 3f the Counter-Mernorial and Portugal has tried to

meet it in paragraph 313 of her Reply. Her answer there is that not
al1 conventions are law-creating instruments, the purpose of some
of them being rather to make provision, as between the particular
contracting Parties, for the application of a norm of general inter-
national law. And she claims that "most" of the agreements cited
by the Portuguese Government are of this character.
554.The reasoning is ingenious; it is quite true that some general
conventions aim at the confirmation, the consolidation of an
unwritten rule of law-the term codification would be used if it

were a question of a generally agreed rule made safe,in this way
against any future controversy arnongst the contracting Parties.
But in that case one would expect to find either in the preamble or
the text of the treaty soIrie reference to the rule or principle ~vhich
it was intended to confirrn. Nothing of the kind is to be found in I
any of the treaties invoked by Portugal here. These treaties are a11
particular treaties dealing very specially with particular situations .
and there is no trace in any of them that the contracting parties ,
considered that thcy were affirming a gencral rule of international
law or were making provision for the application of a general rule .
of international law to themselves in regard to the situation in
question.

555. There is yet another reason for refusing to attach any real
significance to a general practice in regard to the grant of rights of
passage to miIitary forces to and from enclaves which, if there ever !
was such a general practice, had itç existence in the seventeenth and
eighteenth centuries. This reason is that, at that period, the terri- ,
torial aspect of sovereignty was by no means so prominent or so
rigorous as it is to-day. State frontiers were not then guarded, as
they are now, by a continuous customs cordon-and at that time
the passage of men and goods was so far free, without its being 1
considered a matter of legal right, that even in time of war a neutral

Statc could permit the passage of the troops of a belligerent with-
out compromising its neutrality Grotius, De Jure Belli Ac Pacis, ,
II, paragraph 13). A rule valid in carlier times, as judge Huber .
said in the Island of Palmas Case, continues in force onIv so Iong
and in so far as it is not inconsistent with a later ruIe (Reportsof
I?zternalionalArbitral Awards, Vol. II, p. 895; see also Polish Upper
Silesia Case, Series A, No. 7, page 41). j

556. It is true that in its Keply the Portuguese Government has
added to the enclaves cited in the Mernorial the case of Fort de St.
Jean Baptiste, d'Ajuda, Portuguese territory enclaved in Dahomey,
and that forthis case there is no mention of anytreaty in the unsign-
ed aide-mémoire of the French Ministry of Foreign Affairs reproduced
iniAnnex 103 of tlie Reply. But that very document gives us the
information that there is no "Portuguese population" in St. Jean ,
Baptiste, in other qords, that there is apparently no civil popula-
tion id-iatever over which Portugal's sovereignty could be exercised.
Her sovereignty manifests itself simply through the presence of a
Resident who enjoys customs exemption and a special registration
number for his car. He is not confined in the fort, but can move
:
around freely outside it in French territory. This "vestigial link" is
described by thc anonymous author of the document as a syrnbol
of Franco-Portnguese friendship. Perhaps, it is permissible to see
in it also a sample of the vain and meaningless preoccupations with i
her prestige which apparently continue to inspire Portiigal's colo-
nial policies. At any rate, it is quite absurd for Portugal to pretend, i
as she does, to find in it an illustration of that general practice the
existence of which she is trying to establish.

557. The disagreement between India and Portugal, however, is not
confined to the existence or non-existence of the material element
necessary for a customary rule of international law. It extends to ,~7~ REJOINDER OF INDIA (II59)

the question of the psychological element which is also required
for the establishment of such a rule. For in paragraph 320 of the
Reply the Portuguese Government states that 'lit is unable to
concur iii the interpretation of this condition which appears to un-
derlie the Counter-Mernorial".
558. The thesis developed by Portugal in the Reply tskes as its
starting point the Latin expression ~vhich isfrequently used to

denote thc psychoIogica1 element, "opinio izlris sive necessitatis".
Giving an entirely literal interpretation to the Latin expression,
Portugal asserts that the psychological elernent required for the
establishment of a customary rule-the element which distin-
guishes a legal custom from a mere usage-does not necessarily have
to be "the conviction of the pre-existence of a legal rule" but Inay
be simply "the conviction of an inter-social or international neces-
sity".

559. The Portuguese thesis appears to the Government of India to
be open to two obvious objections. The first is that the majority of
the writers who refer to the Latin expression "opinio jzlris sive neces-
sitatis" in connection with international customary law do not in-
terpret it as admitting tu70 alternative psychological elements as
possible bases for the existence of a custornary rule. They interpret
it rather as denoting a single psychological element, the conviction
of a legalnecessity-of a legal obligation-to act in accordance with
the usage; e.g. Anzilotti, "Laconviction d'observerune norme juri-
dique" (Coztrs de Droit international, pages 73-74); Lauterpacht,
"la fwatiqzze actuelle qui se conforme 021 obéità ce qzti est déjà le
droit" (Recueil des Cours, 1937, Vol. IV, page 158); Morelli, "zgn
élément sztbjectif ozt psyckologiq~e, consistant dans La conviction,

acquisepezt a pezdpar les mêmesEtais, que cetteconduite est conforme
à une règlede droit, qu'elle est, en d'autres termes, Z'exécz~tion'zinc
obligation ou l'exercice d'ztne faculté?rwidiqzte - opinio jztris siae
necessitatis" (Reczjeildes Cours, 1956, Vol. I, page 453). It is true
that a few writers do consider "social nec&sityW to provide a
sufficient psychological element for the establishment of a custom-
ary rule. But, as Sorensen observes, "cette notion paraz"tmal appro-
priée à servir de critdreentre la coz~tumejuridique et les actesde cour-
toisie et de simples usages sans caractèreobligatoire" (Les Sources
du Droit international pziblic, page 107).
560. The second and even more fundamental objection tothe Por-

tuguese thesis is that it appears to be diametrically opposed to
the plain words of Article 38 (1) (b) of the Statute of the Court,
which refer expressly to a general practice "accepted ns daw".
These words clearly contemplate that the States, amongst whom
a general practice is seen to have developed, should be acting-to
use Anzilotti's phrase-"under a conviction that they are observing
a legal rule". It is thus not enough that they should be persuaded
of the usefulness, or the social desirability or need, of following the REJOINDER OF INDIA (II 59) 277

particular practice; they must have the conviction that the need a
for this practice has been admitted by the general body of States
to the point of giving birth to a customary rule which thenceforth
they are under a "legal nec~ssity" of obeying. In the Gnvernment
of India's view, it is this last kind of necessity which is alone '
capable oi conferring on a general practice the stamp and authority
of a legal rule.

561. That also seems clearly to have been the conclusion reached
by the Court in the three cases when it has had occasion to deal
specifically with the psychologica1 element in a general practice
alleged by onc of the parties to be evidence of a legal custom: the
Lotus case (1927 A,, No. IO, page 28); the Asylzim case (I.C.J. '
Reports1950 ,age 277) ; and the case of the UlzitedStates Nationals
i?z Morocco (I.C.J. Refiorts 1952, page 199) . he language of the

present Court in the two last mentioned cases is particularly clear.
In the Asylirm case the Court, in rejecting the Colombian Govern-
ment's contention that there existed a general practice of granting
diplomatic asylum amounting to a customary rule, said:
"But it has not been shown that the alleged riile of unilateral
and definitive qualification has invoked or-if in some cases it was
in fact invoked-that it was, apart from conventional stipulations,
exercised by the States grantingthe asylum asa right appertaining
to them and respected by the territorial States as a duty incumbent ,
on them and not merely for reasons of political expediency."

562. In a later passage (page 286), the Court stressed that it had
not lost sight of the numerous cases of asylum cited by Columbia
and then addcd:

"In the absence of precise data, itisdifficult to assess the value
of such cases as precedents tending to establishthe existence of a
legaI obligation upon a territorial State to recognize the validity
of asylum which has been granted against proceedings instituted
by local judicial authoritieIn a more general way, considerations
the territorial Stateto recognize asylum without that decision being
dictated by any feelingof legal obligation."

563. In the UnitedStatesNationals case the Court, basing itself ex-
pressly upon its previous statements in the Asylztm case, once again
held that there was no sufficient proof of the psychological element
and that in consequencc the alleged customary rule was not estab-
Iished.

564. The Government of India submits that strict proof of the
"conviction of observing a legal rule" isparticularly necessary and
important in the present case. For the generalpractice alleged in the
present case is said by Portugal to place the Sovereigns of certain
territories under an obligation to suffer other States to exercise
.
rights on their territory. Thisis not a case where the alleged general278 REJOIEDER OF IPiDIA (II 59)
practice involves a reciprocal recognition of rights and obligations.
It is one where the rights are al1on one side and the obligations al1

on the other side. In such acase only the clearest evidence that the
practice was one "accepted as law" corild, it is submitted, justify
s finding that it amounted to a general rulc of customary law.

C. Absence of a7zyGeneraLPrinci9le of Law ulithin the Menning oj
A~ticle 38 (r} (cl ofthe Stntzite

565. The Government of India must first of al1underline the evi-
dent hesitations, even contradictions, which mark the attitude of the
Portuguese Government oii this question. In paragraph 42 of the
Memorial, Portugal rejected unambiguously any nssimilstion of
her alleged right of passage to "a servitude more or less analogous
to those of private law" and strictlp limited her reliance on general
principIes of Iaw to an appeal to alleged principles of public inter-

national law (see paragraphs 52 etseq.).Now, however, in the Reply
a whole section running to over five pages is devoted to "a general
principle derived from the conformity of systems of municipal
law" (paragraphs 327-334).
566. It is true that, in order to reconcile its present appeal to prin-
ciples of private law with its initial condemnation of the transfer of
private law servitudes into international law, the Portuguese
Government makes a distinction between the principle of the right

of passage which is said to emerge from the servitudes of private
law and the servitudes themselves which are said to be only the
particular, vehicle -used in certain juridical systems for giving
concrete form to the principle.
567.Ingenious though this explanation may be, it is incompatible
with the position taken up by Portugal in the Memorial. It was not
merely the term "servitude", it was the servitude itself, that is to
Say, the restriction-whatever name one gives to it-upon the
right of private property in a piece of land which adjoins enclaved

land, that the Portuguese Government rejected in the Memorial,
whereas afterwards, from its Preliminary Observations onwarda,
it lias found it necessary to rely on that restriction.
568.The Government of India continues to think that Portugal's
first view is the only correct one, seeing how false is thenalogy be-
tween private property and sovereignty on which her secondview has
necessarily to be bascd. It scarcely needs to be recalled that the
contemporary conception of territory is of a space in which a given

State hss an exclusive competencc to exercise its authority,
subject to any exceptional rights agreed to by it in favour of
other States and those much fewer rights resulting from rules of
law, like the right of innocent passage. Rlanifestly, that has nothing
in common with the rights of enjoyment and disposa1 which forrn
the constituent elements of private property. 569. Little importance therefore attaches to the fact that the
majority of civilized States recognize in their private law an obliga-
tion for the owner of a servient tencment to allow passage to and from
,
the dominant tenement, when it cannot be established-certainly '
not by relying exclusively on the auxiliary sources of law authorized
bp Article 38 of the Statute-that any such rule cxists in regard to
passage bctween a State and an enclave under the same sovereignty. :
Not a single writer or judicial decision has been cited in support of
the alleged rule, and Portugal's contention in consequence appears !
to be simply her own original invention cooked up specially to
meet the needs of her case.

D. GelzeralPri?zci$les of Inte~lzational Law are not an Additionab
Source of Law Independent oj Article 38 (1) oj the Statlife
570. The Government of India adheres toits view that Article 38 (1) '

of the Statute contains an exhaustive list of the sources from which ,
it is permissibIe to derive the rules of international law which the
Court is âuthorized to apply, and that it is out of the question that
recourse should be had to yet a fifth source in the shape of "general
principles of international law".
j71. This does not, of course, mean that general principles of inter-
national law are non-existent and have no place in legal theory
or judicial practicc. Nothing is more natural for jurists, especially
those brought up in Roman systems of Iaw, than to extract from

rules discovered by an examination of the several sources of inter-
national law certain general principles which place the various
rules in their correct perspective, guide the practitioner in their
interpretation and help hirn to appreciate their relation to each
other. These general principles, refined as they are from existing
rules of positive law, have their hasis in positive Isw. It follows
that, when an alleged general principle is disputed, it is essential
to prove its existence by indicating the rules of positive law which
are claimed to provide the basis for formiilating the general prin-
ciple. Nor can it be a1Iowed that the gcneral principIe shouId be
formulated in a vague and sweeping rnanner departing materially
from the basic rules of positive law nor that corollaries may be

deduced from the general ,principle by a purely Iogical process
without the sIightest regard for the underlying elements of positive
law. The Government of India has previously made this point in
paragraphs 296 and 297 of its Counter-Nemorial and it can only
restate and reaffirm here what it said there.
572. Does it need to be recalled that the same view was taken by
the Permanent Court of International Justice in the Lotzts case,
where it said (Series A, No. IO, at page 16):

"The Court.considers that the words 'principles of international
law', as ordinarily used, can only mean international law as it 5 ,
applied between al1nations beionging to the cornmunity of States.Thus the cnunciation of an alleged "principle of international law"
does not absolve the party which invokes it from proving its basis
in positive international law.

573. Similarly, the Government of India concurs without any

reservation in the remark of Strupp, who in the course of his lectures
at the Hague Academy in 1930put his audience on guard against
the "terminological confusion" which surrounds the phrase 'prin-
ciples of internationallaw', "by which is meant sometimes simple
legal principles, sometimes important legal principles and some-
times natural law" (Kecueildes Cours, 1930,Volume III, page 447).
And it equally endorses the observation of Professor Sorensen in
his book, Les Soz~rces dw Droit internationn~, which is n7rongly
quoted by Our opponents, where he says: "Etanl doizlzéqfie ni le
Statut de EuCournila doctrinetraditionnelle n'admettentcesbrincibes
comme une catégorieindépendantedes sources, il ya liez~de$résumer
aae la Coztr entend combrendre bar ce terme les normes invétérées
dans le corpsdzt droit international, quellequ'ensoit la sourceinitiale,

plutât que d'envisager un groztpe nouveau et particulier de règles"
(at page 112). And from this proposition the author correctly
concludes that for a principle to be applied by the Court it must
be so well settled that it im~oses itself on the mind of an inter-
national jùdge as a determining factor ivithout its being necessary
to re-examine its origins and foundations (ibid., page 115).

574. This being India's position, it goes without saying that the
Government of India does not question the principle of territorial
sovereignty, or its corollaries the independence and ecluality of
States. Indeed, it could hardly do so, seeing that India herself
invokes this very principle for the purpose of rebutting the obliga-
tion, to which she is alleged to be subject, of suthorizing the passage
of the troops and officiais of another State over her territory. Does

not the Government of Zndia itself contend that it alone is com-
yetent to exercise territorial sovereignty over the area of Indian
territory which separates Daman from Dadra and Nagar Aveli?
But what Portugal triesto establish in the Reply is that, Portu-
guese sovereignty not being exercisahle without some transit
across Indian territory, the Indian Union has to authorize this
transit; the territorial sovereignty of the one State having thus
to submit to certain limitations in order that the sovereignty of
the other may be exercised in its own territory (paragraph 343
of the Rcply). But this hierarchy of sovereignties, this duty imposed
on the one State of lirniting its own sovereignty having regard to
the needs of the other, is a mere $etitio 9rincipii arbitrarily deduced
from the notions of sovereignty, independence and equality of

States, and which finds support neither in treaties nor in custorn,
nor in the general principles of domestic law, nor in legal writings,
nor in judicial practice. REJOINDER OF INUIA (II 59) . ' 281

575. Hencc, it matters little that in the most varied phrases the
Portuguese Government repeats to excess that the exercise of
Portuguesc sovereignty in the enclaves is "impossible" (para- *
graph 342), that the sovereignty is "reduced to nothingness" or
"annihiIated7 (paragraph 344), if the sovcreign cannot have access
to these pockets by crossing neighbouring forcign territory; that
thc refusa1 of passage creates a "total interruption" of the sover-
eignty (paragraph 34z), that it leads to suffocation (paragraph 348),
that the permission is thus "indispensable" (paragraph 342). So
rnanjr words does she find to express the necessity of passage. But !

it still remains for her to prove that from this necessity there has j
developed a rule of positive Iaw and Portugal fails to furnish any
such proof. Nor is this the only instance in which the vital interests
of a State are not found to have protection in a rule of law and
cannot therefore be likened to substantive rights. India has cited,
in paragraph 298 of the Countcr-hlemorial, other examples of such
vital interests, right of access to the sea, right to raw materials,
right to commercial outlets, right to immigration, right to living
rooni and before 1940 right to colonies; she has pointed out that
they have frequently led to agreements granting them satisfaction
within well defined limits, but that in dcfault of agreement it has

nevcr bcen the case that the mere intensity of such needs suficed
to give birth to rules of law which ultimatelyinternational tribunals
could apply.

576. Thc Portuguese Government summariiy rejects India's argu-
ment in paragraph 337 of the Reply :India's comment, it says, is in- '
applicable to the claim of whicfi it has seized the Court and to the
title on mhich it bases that daim, and it treats this comment as a '
digression. The Gov~rnnlent of India would be surprised if the
,
Court subscribed to that view. For in vcrifying ~vhether it is proper
to deduce from the principlc of sovereignty or from its corollaries,
such as indcpendence or equality or the right of existence, a positive
rule of solidarity imposing on States the sacrifices required to ,
satisfy the essential needs of one of their number, it was legitimate i
for the Government of India to look at the answer given to this
question in' cases other than enclaves but having the sanle vital
character for a State. And that answer is completely negative.

577. IVhether the Portuguese clairn can bebased on any other title
is anothcr cluestion. In the present section the Governrnent of
India is only concerned with the question of the additional title '
which Portugal tl-iought that shc could find in the general prin-
ciples of the law of nations. It is submitted that this title has been ,
shown to be non-existent. 578. In concluding its observations on the existing state of the
general international law relating toe subject-matter of Portugal's
claim the Government of India desires to emphasize that, even if a

right of transit for theurpose of having communication with en-
claves could besaid to find support in one or other source of generai.
international Iaw, that would not suffice to justify Portugal's claiin
to the transit of armed troops and police for the purpose of suppres-
sing the insurrection inDadra and Nagar Aveli. h right of transit
of the latter kind would go far beyond a mere right to maintain
necessary commu~iications for the purpose of exercisingsovereignty.
A right to send troops and police across Indian territory for the
yurpose of fighting the people of the enclaves and compclIing them
into submission goes far beyond any right of transit that could
conceivably be deduced frorn the practice in regard to Büsingen,
Llivia, Campione and the other enclavesreierred to in paragraph 306
of the Reply. It alsooes far beyond any principle that coulclpossi-

bly be deduced from the general principles of law recognized by
civilized nations in theiromestic law.

III. ABSENCE OF AKY OBLIGATIO UPON INDIA DERIVED FROM
PARTICULS AORURCES-TREXTIE O H LOCAL CUSTOAI

579. Part VI of the Counter-Memorial contains a full statement of
India's arguments with respect to Portugal's claim to derive her
alleged rights of transit from certain particular treaties and from
local custom. The Government of India there examined the question
whether Portugal's alleged nghts of transit can be derived from
these particular sourcein three stages: firsitconsidered the facts
of the Maratha period; then it considered the implications of the
displacement of the Riaratha Rulers by the British in 18x8 and

Portugal's assumption of the sovereignty of the enclaves after the
extinction of the hlaratha Power and as a result of this rcpresen-
tation to the British Government; and finally it considered the facts
of the British and post-British periods. In Part 1 of the present
Rejoinder the Government of India has submitted to the Court a
conscientious and exhaustive study of the historicai case put for-
ward by Portugal in the Reply and has supported its criticisms of
the Portuguese contentions with numerous further historical docu-
ments and citations. In the light of this study of the Portuguese
case and of the further evidence adduced by India in the Annexes
to the present Rejoinder, the Government of India feels justified in
claiming that there is really nothing in the PortuguesepIy which
touches in any material point the arguments advanced by India in
Part VI of the Counter-Mernorial with respect to particular treaties
and local custom. Indeed, the newmaterial submitted to the Court

in Part 1above and in the Annexes to this pleading serves not merely
to rebut Portugal's contentions but to give added weight to the
arguments of India in the Counter-Memorial. REJOINDER OF INDIA (II 59) 283
1
580. On thc question, therefore, whether Portugal can find iii
treaties or local custom any particular basis for her alleged rights of
transit the Government of India takes its stand essentially upon the ,
arguments set out in Part VI ofthe Counter-Memorial. It willconfine
itself here to reviewing briefly the contentions of the Portuguese
Government on this aspect of the case and to pointing out why it is
that they cannot be accepted. 4

581. Before dealing with Portugal's contentions in regard to the
historical facts, it seems necessary to examine a little further the
juridical basis of local custorn as a possible source of*Portugal's
alleged rights of transit over India's territory. The Government of
India, in paragraphs 308 and 316 of its Counter-hlemorial, has
already set out its views concerning the conditions under which a
legal rule can be deduced from a local usage. It does not suffice to

show merely a usage; nor is it, properly speaking, a question of
showing a usage accornpanied by an opinio iztris. The essential
requirement is to prove that the historical facts provide clear evi-
dence of the specific agreement of the territorial sovereign to the
exercise of rights of passage by Portugal.

582. In paragraph 358 of the Reply, however, the Portuguese ;
Government contests this view of the juridical basis of Iocal custom
and simply equates local custom with generalcustom. It maintains
that the only subjective elementnecessary to establish a local custom
is an opinio jz~rissive necessitatis which, as in the case of general
cuçtom, it interprets as a conviction of the existence of an inter-
social or international necessity. It goes even further, saying that
the opinio juris sive necessitatis does not have to be proven directly 1
in each case and that a presumption in favour of the existence of the

psychological element may even be argued.
583. The Government of India belicves this view oflocal custom to
be completelymistaken. Properly speaking, in the present case there
is not, and cannot be, any local custorn in the sense iii which Portu- i
gal understands local custom. One need only look at the definition of
,
custom in Article 38 of the Statute to see that this is so: "a genernl
practice accepted as law". Although the word "general" rnay not
be synonymous with universal, it is clear that it excludes a practice ,
which is only observed in the relations between two particular
States. Thus, in the two cases where the Court itself has considered ;
the problern of a local custom and has applied in that connection i
the test of the opinio juris-the Asylttm Case and the case of the
Riglzts of Uflited States ATationalsin Morocco-the local practice in
question did not concern two States alone but a number of different

States. 1
584. Nor can Portugal get any support for her thesis frorn the place
allowed to local custom, to "us et coztt~~uzes" in the domcstic Iaw
of many countries. The place allowed in these systems to local j
i~~4 REJOINDER OF IKDIA (II 59)
custoni, which is in any event strictly limited by the rules of the
civil law, isexplained by the fact that the number of the subjects
of the law participating in the formation of a local custorn is suf-

ficiently great to give tothe creation of the localrule that collective
character which is the hall-mark of a customary rule. But one can-
not visualise a custoînary rule of law being formed by the practice
of one State with regard to a single other State.
585. It follows that it is solely in virtue of a tacit agreement-
a tacit convention-under Article 38,paragraph I (a) ofthe Statute,
and not in virtue of an "international custom" under Article 38,
paragraph I (b), that in the present case local custom can be en-
visaged as a possible source of legs1 obligation for India. It also
follows that the Government of India was fully justified in the

Counter-Mernorial when, at the beginning of its examination of
the fscts alleged by Portugal to establish a local custom, it under-
lined that these facts, if they were to be of any relevance, must be
such as tend to show the specificagreement of the territorial sovereign
tu the rights of transit ckaimedby Portz~gal.

The MaratlzaPeriod

586. The Portuguese Government, as the Government of India
pointed out in paragraph 308 of the Counter-Mernorial, claims to find
the origin of both her particular titlesto rights of transit-both the
alleged treaty right and the alleged local custom-in transactions of
the Maratha period. It represents transit between Daman and the
enclaves during the British and post-British periods simply as a

continuation and perpetuation of rights of transit established
during the Maratha period for the exercise of a sovereignty over the
enclaves said tohave been acquired by Portugal from the Maratha
Rulers in virtue of a "Treaty ofPunem" andthe Sanadsgiving effect
to the "Treaty". The Portuguese Government does not, and cannot,
refer to any particular fact or document during the British orpost-
British periods asproviding specificevidence ofBritish orIndian con-
sent to and recognition of Portugal's possession of legally enforceable
nghts of transit. What Portugal does is rather to assert that she
acquired the alleged rights of transit as an incident of the acquisi-
tion of the sovereignty of the enclaves from the Maratha Kulers,
and that the transit of persons and goods during subsequent periods
is merely a manifestation and continuation of her ancient rights.
In consequence, Portugal's contention, that by the "Treaty of
Punem" and the Ssnads giving effect to it the Maratha Rulers

conferred on her the full sovereignty of the enclaves, constitutes a
vital root of her titIe to rights of transit derived from particular
treaties and local custom without which that alleged title altogether
withers and dies. How vital Portugal herself realises her root of
title in the &Tarathapcriod to be is clearly evidenced by her sup- REJOINDER OF IKDIA (II 59) 285 1
pression of the Portuguese text of the alleged treaty of 4th May ,

1779. (Sec paragraphs z and 96 above.) l
587. In paragraphs 52-112 of the Counter-Mernorial the Govern-
ment of India adduced what seemed to it the most cogent reasons
for holding that ArticIe 17 of the alleged treaty did not and could
not bring about a cession to the Portuguese of Maratha territory

in full sovereignty. Article 17 of the alleged treaty envisaged a
grant of revenues in a tenure known under the names of Jagir or
Saranjam. It pointed out that the Maratha grant of Saranjam or
Jagir was a grant revocable at the wili of the grantor. And in its
legal argument in paragraphs 312-3 the Government of India drew
the inevitable conclusion from these facts that a Maratha grant of
the enclaves to the Portuguese in Saranjam tenure-a revocnble
grant of revenue-could not provide any possible legal basis for
implying in favour of Portugal permanent rights of transit for the
purpose of exercising Portuguese sovereigntyin the enclaves.

588. In the Reply, Portugal has attempted to meet India's case :
by advancingthree principal contentions. The first is that Article 17
of the alleged treaty of 1779 did not in its original versions classify
the grant as a grant in JagirISaranjam tenure and that it was onIy
the Marathas who afterwards unilaterally described the grant as a
Jagir/Saranjam tenure; and that Article 17 in its authentic version ,
' effected an assignment not merely of the revenue but of the villages
themselves. The second contention is that the name Jagir or Saran-
jam does not suffice to characterize a tenure as a revocable revenue
tenure since, according to her, fhere are various types of Jagir and
Saranjam tenure and only a detailed examination of each particular

tenure wil disclose what are its characteristics. The third conten- '
tion is that in any event "treaty-saranjams" were always in a
special category and that their legs1 nature had always to be !
determined exclusively by reference to the actual terms of the
treaty and the historical facts connected with it.
589. The Government of India submits that these three conten-
tions have been completely exploded by the further evidence and
authorities collected in Part 1 of this Rejoinder and in the accom-

panying Annexes.
590. Portugal's first contention, that ArticIe 17 of the alleged
treaty of 1779 did not classify the intended grant as a grant in
jagir or saranjam tenure is exploded by the fact that the grant was
in fact so described, not only in the Maratha documents relating
to the grant but in the officia1Portuguese text of the aIleged treaty
of the 4th May 1779 ~vhichbears the signature of the Portuguese

Viceroy himself. (See paragraph 96 of the Rejoinder.) Portugal's
second contention that the name jagir or saranjam does not suffice
to characterize a tenure as a revocable revenue tenure is met by
the fact that the Maratha Government who made the grant defined286 REJOINDER OF INDIA (II59)
and described it as Saranjam, Jagir and Dumala, which description

connoted a conditional, revocable title to collection of revenue
from territory within the Grantor's Sovereign Jurisdiction, and that
it consistently treated the grant asaranjamjJagir/Dumala from the
day of the grant till its extinction as a Sovereign Power. The final
contention ofPortugal that "treaty-saranjams" werein a special cate-
gory and could not be revolred is shown to be without any value
whatever by reason of the fact that, one, no treaty was concluded
between the Portuguese and the Marathas and the grant in question
was made under Sanads, and, two, whether the grant of saranjam was
made by treaty or othenvise, its nature and incidents continued to be
the same. Furthermore, the classification "treaty-saranjam" was
unknown to the Marathas. The term was first uçedby the British
and it denoted a saranjam whose continuance was guaranteed
by the British Government upon the fulfilment by the saranjamdar
of stipulated conditions of fidelity and service tothe British Govern-

ment. The Government of India cited in this connection a decision
of the Judicial Cornmittee ofthe Privy Council (ShekhSzaEtanSaniv.
Shekh Ajmodin) in which it was held that s "treaty-saranjam" was
revocabEe atthe pleasure of the Government. (Seeparagraphs 135 and
139 above and Annex F. No. 35.)The Government ofIndia has answer-
ed al1the contentions of the Portuguese Government in regard tothe
Maratha Period and shown that the Marathas never had the inten-
tion of making a cession of territory to the Portuguese; that Portu-
gal never received from the Marathas a title to cession of territory
in full sovereignty;that the Marathas granted to the Portuguese and
to Narayan Vithal Dhume, the Portuguese Envoy, a saranjam or
jagr on identical terms and conditions; that the Portuguese grant
was attached on several occasions in connection with the question
of Ramnagar Zakat; that the Marathas never abandoned their
sovereign rights over Dadra and Nagar Aveli and had no intention

of doing so.

591, Portugal's claim to the enjayment of a right of exemption
from Maratha customs duties has also been exploded. It has been
shown that theMarathasgranted and withdrew exemption fromduties
and taxes on revenue yield (" Jame"-see paragraphs 229, 265 and
266)of ,Nagar Aveli according to its discretion and that till the very
end of Maratha rule the Portuguese had to struggle hard to obtain
from the Marathas passes and permits relating to exemption from
Maratha duties and taxes. The Government of India has also shown
that no right of way over Maratha territory was ever clairned or
enjoyed by the Portuguese. Finally, the Government of India has
shown that the Portuguese were expressly prohibited from raising
"imarat" or buildings in thevillages from which they were to collect
their revenue under the saranjam grant. Consequently, the terms

a.nd conditions of the temporary, revocable and Iimited title to
collection of revenue was such as to negative completely anyquestion of the Portuguese having acquired sovereign rights over
the hfaratha territory of Dsdra and Nagar Aveli. The Govern-
'
ment of Iiidia bas dealt with a11 these points in great detail
and given a systematic refutation of the Portuguese claims in
the five sections on the Maratha Period facts in Part 1 of the
Rejoinder.

The British and Post-IndependencePeriods

592. In paragraphs 324 to 342 of the Coiinter-Rlemorial, the
Governrnent of India set out the rcasons for the submission that
no ground can be discovered in the .British Period or the Post-
Independence Period for, suggesting that there is any Treaty or
Local Custom creating the right of passage claimed by Portugal in
these proceedings. That submission was bascd upon the historical
factç set out in the Counter-Mernorial. The Portuguesc Government
have tried in their Reply to give another explanation to those facts,
but that attempt, in the submission of the Government of India,
fails altogether. In view of this, it is not really necessary for the '
Governmcnt of India to do more than to refer to paragraphs 324
to 342 of the Counter-Mernorial, and to say that they adhere to the l
argumentsthere set out.

593. Those arguments are, however, strengthened by one or two
matters cmphasized for the first time in this Rejoinder. One of those
rnatters is the reciprocal arrangement which prevailed before 1879
for the entry of armed men of one Government into the territory
of the other. The existence of this arrangement, and itç termination
by the Treaty of 1878, confirms the fact that no special agreement
orcustom forthe passage of Portuguese armed forcesbetween Daman
and Nagar AveIi ever existed. This fact is yet more strongly confir-
med by the history of Article XVIII of thal Treaty, undcr which the
armed forces of either'party were forbidden to enter the territory of

the other without permission. The fact that the Portuguese Govern-
ment not merelp accepted, but themselves suggested and pressed,
that provision shows that they had no right of transit. Had they
had such a right between Daman and the Enclaves, they would
have been carefuI to preserve it under thc Treaty. After the period
of the Treaty they always asked for permission when an armed
force had to move between Daman and the Enclaves, and continuecl
so to askthrongh the Post-Independence Period. This fact is entirely
inconsistent with the existence of any Local Custorn creating a
right of transit.
594. IVith regard tothe transit of goods, one fact now emphasized

Iends strong support to the argument set out in the Counter- *
Rlemorial that neither treaty nor local custom imposed upon the
Indian Government any obligation to permit the transit of goods.
This fact is that of the concession granted by the Government of ;288 REJOINDER OF INDIA (II 59)

Bombay in 1945. The important feature is not the concession, but
the system from which it sprung. The Government of Bombay had
prohibited completely the passage of al1 commodities frorn their
territory into Daman. They made an exception in favour of produce
of Nagar Aveli, but this was done purely as a concession; on two
occasions,in 1948 and in 1953,the Government of India threatened
to ~vithdraw it, and in 1948 they did suspend it for some time.
There was no suggestion from the Portuguese authorities that the
original prohibition infringedny right, aIthough its effect upon the
population of Daman wss very serious (Indian Annex F. No. 68).
They made no suggestion that they were entitled to the concession
xvhichthey were given, and when its removal was threatened they
made no cornplaint but, in 1949, apologized for the irregularities
which had taken place. Had they possessed any right of transit of

goods, it is inconceivable that they should not have referred to it in
these circumstances. The Government of India submit that this
incident reinforces the arguments set out in paragraphs324 to 342
of the Counter-Memorial for the view that therehas never been any
Treaty or Local Custom relevant to the right now claimed. REJOINDER OF INDIA (II59)

Part IV l

THE ALLEGED PORTUGUESE RZGHT OF TRANSIT IS NOT
EXERCISABLE IN THE CIRCUMSTANCES

OF THE INSURRECTION
i
595. The Government of India, in Part VI1 of the Counter-Memo-
rial, contended that even if Portugal were to be held to havehad the
rights of transit which she claims, they ceased to be exercisable
when the peoples of the enclaves rose against the Portuguese
Government and when a de facto,independent local authority
established itself in the enclaves. In Section VI of its Reply the
Portuguese Government has disputed the validity of India's conten-
tions and the Government of India will now examine the Portu-
guese arguments on this aspect of the case. ,

596. Portugal begins, inparagraphs 365-370, by challenging In-
dia's statement that the liberation of the enclaves and the eçtablish-
ment of the de factolocal administration took place bya general in-
surrection. Portugal says that the liberation began with the entry
into the enclaves of "invaders" from outside whose express object

was to bnng al1 Portuguese territoriesin India within the Indian
Union; and that they only established themselves in the enclaves
because India opposed the sending of reinforcements by Portugal
to aid the Portuguese local authorities. Portugal then soiemnly
proceeds to argue that (a) the burden of proof is on India to estab-
lish the accuracy of her statement that a general insurr,ection took
place in the enclaves but that (b) it is legally impossible for India
ever to discharge that burden. of proof. She maintains that al1the
evidence submitted by India ernanates frorn the "invaders" or
from political bodies which support thern and is for that reason
alone to be totally rejected by the Court. She further maintains
that India ncither possesses nor has any possibility of obtaining

acceptable evidence establishing that there was a general insurrec-
tion, because she says it is not open to India to make inquiries in
the enclaves, seeing that they are "Portuguese territory" and, in
any event,' any such inquiries would have no legal value since they
would be carried out unilaterally without any control by Portugal.

597.This whole argument is an ingenious constructionfor the pur-
pose of loading the dice against India and in favour of Portugal.
It really amounts to an invitation to the Court todismiss from the
case altogether the vital fact, that the people of the enclaves have
risenup against Portuguese rule and thrown off Portuguese sover-
eignty, without giving it any consideration. In the view of the290 REJOINDER OF INDIA (II 59)

Government of India, however, the Portuguese argument is com-
pletely misconceived.

598. In the first place, the Government of India considers inad-
missible the Portuguese thesis, that it is up to India to prove to the
Court the particular character of the insurrection. The general
burden of proof Inthe case is, of course, upon Portugal, as plaintiff,
and she has to prove not merely her title to the right of transit
which she claims but her title to exercise it in the particular cir-
cumstances of the insurrection in the enclaves. India, as the Court
knows, has provided some evidence that there was an insurrection
in the enclaves and, this being so, the burden of proving her right
to claim passage for her arrned forces and officials in case of such
an insurrection most certainly rests upon Portugal. The Portuguese
Government never tires of repeating thatthe right of transit which
she claims is not an absolute or general right but a right of transit,
without any exemption from the exercise of India's sovereignty,

and a right strictly limited to what is necessary for the exercise of
Portuguese sovereignty within the enclaves. It is a clear conse-
quence of Portugal's own formulation of her claim that she may bc
called upon to justify to India her right to passage on each occasion
that she demands it. Accordingly, the Govemment of India cannot
accept the correctness of the view which Portugal appears to
express in paragraphs 365-370that there is, in effect, a burden upon
India to justify her refusal of passage instead of a burden upon
Portugal to establish her right to passage in the circumstances of
the insurrection in the enclaves.

599. In the second place, the fact that some Goans Inay have eri-
tered the enclaves at the time of the insurrection is in no way in-
consistentwith the general character of the insurrection. It is a com-
monplace of history that genera1 insurrections are frequently
touched off by a particular incident or have their origin inthe action
of particular individuals. That there was an insurrection in the encla-
ves in 1954 no one disputes. That this insurrection resulted in the
creation of a new de' factolocal administration covering the whole
of the rebel territory is also not in dispute. That the defacto admi-
nistration has continued to operate in the enclaves with the appar-
ent acquiescence and approval of the people of the enclaves is an

undeniable faet. These faetç alone, ~vithout anything niore, would
justify India in speaking of a general insurrection in the enclaves.
In addition India filed with her Counter-Mernorial a number of
documents relating to the insurrection (Indian Annex E. No. 63-68).
In the majority of cases, it is true, the information contained in the
documents is derived either from sources on the insurgent side or
from the de facto local authorities themselves. That does not, how-
ever, prevent it from being perfectly good evidence. After 311,it
was the insurgents who made the insurrection and it is of thcm
that the de facto administration is composed. For exampie, the (5) Between the legal situation at the outbreak of an insurrection
and "recognition of belligerency", practice recognizes the possibility

of an intermediate situation, namely, "recognition of insurgency".
This status cannot be defined a $riori but varies according to the
case. "Insurgency" as conceived in relation to foreign States, is the
surn total of rights and privileges which these States concede tothe
rebellious party during a civil war (Liuterpacht, op.cit., page 270).
602. Portugal also citesWehberg as saying that recognition of in- ,
surgency is a stage "in which the insurgents are already something

more than rebels but have not yet obtained the rights of belli-
gerency" and asserts that such recognition is only possible "if an
arrned struggle in fact exists between the insurgents and the lawful
government ".
603. The recognition of the belligerency of the insur'gents in the
enclaves is not a point which arises at al1in the present case. The
Government of India does not, therefore, find it necessary to detain
the Court with a long disquisition upon the Portuguese propositions

concerning "recognition of belligerency". It feels bound, however,
to enter a firm reservation as to the correctness to-day of the
Portuguese contention that initially insurgents have no status in
international law and that only "recognition of belligerency" can
give insurgents the quality of subjects of international law. In
modern times there has been a strong tendency to bring insurgents
within the purview of international law and to grant them in some
rneasure, however limited, recognition as subjects of international
law. This tendency is very cIearly seen in the four Geneva Conven-
tions of 1949, each of wliich has a gcneral Article, namely Article 3,
laying down certain minimum international obligations which are
to apply in cases of armed conflicts not of an international charncter.
Rloreover, the Article expressly speaks of those obligations as
attaching to "each Party do tlz. confiict", thereby clearly ascribing to
insurgents a certain capacity as subjects of international law. That

they are to have thiscapacity quite independently of any "recogni-
tion of belligerency" is made very clear not only by the general
wording of Article 3 itself but also by the terrns of Resolution
NO. IO of the Geneva Conference, at which the Convention was
drawn up. For, owing to the explicit reference in the Convention to
"Parties" ta a non-international conflict, it was thought necessary
to record in a special Resolution that the Conventions were not to
be understood as modifying "the conditions under which a Party
to a conflict can be recogniscd as a belligerent by Powers not taking
part in this conflict." This Resolution, the clear purpose of ~vhich
was to avoid confusion bettveen the status of "insurgents" and the
status of "belligerents", strongly confirms that in the drafting of
the Geneva Conventions it Etrasaccepted that insurgents do possess
within certain limits the character of subjects of international law.
That insurgents possess such a limited status as subjects of inter- XEJOINDER Ob INDIA (II 59) 293 a

nationallaw is now accepted by many of the leadingmodern writerç :
see Oppenheim-Lauterpacht, International Law, Volume 1 (8th edi-
tion, 1955)) pp. 140-1; Charles De Visscher, Théorieset Réalité s n
Droit international PztbEic (1953)~ p. 289; Alf Ross, Text Book of i
Iflternational Law (1g47), p. 103; Guggenheim, Traitéde Droit infer-
national public, Volume 1 (1953) pp. 202-208.

604. Nor is it possible to accept the correctness of the Portuguese
contention that the existence of an actual armed conflict between ,
the rebels and the Government is the basis and the essential con- '
dition of "recognition of insurgency". The raison d'êtra end the legal !

basis of "recognition of insurgency" is the mere fact of insurrection
-the mere fact that in a given piece of territory political power '
and authority are in dispute-with repercussions on another State.
"Recognition of insurgent!.". it is said in a leading text-book,
"is the outcome both of the iinwillingness of foreign Stateç to treat .
the rebels as mere law-breakers and of the desire of thoçe States
to put their relations with the insurgents on a regular, although
clearly provisional, basis" (Laiiterpacht, Recugnition in Internatio-
nal Law, p. 270). An insurrection, of course, is usually attended

by a continuing armed conflict, and frequently, no doubt, it is the 1
repercussions of the armed confiict on outside States which lead
them to recognize the existence of the insurrection. Neither of these '
points, however, is an essential element in recognition of insurgency.
In the first place, it is absurd to suggest, as Portugal does, that
recognition of insurgency is impossible when the armed conflict
endures only for a brief moment because the insurrection is imme-
diately and compIetely successful. The very success of the insur-

rection, since it rcsults in a clear alteration of the dejacio effective ,
political power in the area, is an even more urgent case for rccog-
nition of insurgency than the case where a continuing armed conflict
leaves arnbiguous and precarious the de facto position in the area. a
In the second place, it is not only the military repercussions of an '
armed conflict which may make it impracticable for an outçide
State to disregard the existence of a civil insurrection and which
ma? cause it to recognize a state of insurgency in the area. It may
prove expedient to enter into contact with the insurgent authorities

with a view to protecting nationalinterests in the tcrritory occupied
by them and to regularizing political and commercial intercourse
with them.
605. The Government of India hardly thinks it necessary to

dernonstrate that the factual situation resulting from an insurrec-
tion in an énclaveaffects in a most particular and urgent manner the
government of the territory ivhich surrounds the enclave. Still
more is this the case ~vhen,as in the present instance, the rebel
enclave is separated from the territory of the displaced government
by only a few miles. The factuai situation is full of dangers and
complications for the government of the jntervening territory and,in consequence, it has every reason from the very outset of the
insurrection to recognize in some degree the existence of the
insurrection.

606. Equally untenable is the proposition in paragraph 374 of the
Reply that there were no acts on the part of the Government of
India which could be characterized as "recognition of insurgency".
Portugal there says: "whatever the purpose of the recognition may
be, the stated intention to recognise is always required. If it may
be implicit in certain cases, the condition is that the scope of the
facts be clear and that the intention to recognise be a necessary
result." And, citing a dictum in Judge Lauterpacht's book that
"de facio intercourse is not de facto recognition", it contends that
the contacts of the Indian authorities with the insurgents in such
day-to-day matters of administration as police, posts, transport,
etc., do not constitute recognition of insurgency. In the view of the
Government of India, the Portuguese argument on this point is
completely misconceived. Leaving aside the question exactly what
is meant when it is said that "de facto intercourse is not de facto
recognition", recognition of insurgency is a very different rnatter
£rom the recognition de facto of a State or government. It is of the

very essence of recognition of insurgency that it should manifest
itself in informal intercourse tvith the insurgents or in other in-
forma1 reactions to the factual situation arising from the insurrec-
tion. Thus, Oppenheim-Lauterpacht gives as typical examples of
recognition of insurgency cases where a third State, without making
a forma1 pronouncement and without conceding to the rebellious
forces belligerent rights affecting foreign nationals, refrains from
ireating theîrz as law-breakers, or where it considers them as the
de facto authoritv in the territorv under their occu~ation and main-
taiks with themi the relations dkemed necessary fbr the protection
of its nationals. for securineUcommercial intercourse or for other
purposes (of. cd., Volume 1, pp. 140-1; see also in the same sense
Lauterpacht, 09. cit., p. 270).

607. The basis of "recognition of insurgency", as previously
pointed out, is that in a given piece of territory political power is in

dispute with repercussions on the other State. Thelatter by a well-
established practice is entitled to make such informa1 contacts with
the insurgents as it may deem necessary to protect the interests of
itself and its nationals and is also entitleby legislative or adminis-
trative measures, to take such steps as it may deern necessary to
isolate its territory and its nationals from the repercussions of the
insurrection. Such reactions on the part of an outside State consti-
tute recognition ofinsurgency. They do not, however, necessarily in-
volve any larger form of recognition, and a State which does react in
these ways cannot justifiabIy be accused of "prernaturerecognition".
For the modern State practice on this point, the Court is respect- REJOINDER OF INDIA (II59) 295

fully referred to Hack\vorthJs Diges tf 1nternatiolza.l Law (1906),
Volume 1,page 356-363, and Lauterpacht, op. cd., Chapter XVI.
608. The right of outside States to recognise s situation of insur-
gency, to take steps to protect their own interests, and to adopt an
attitude of reserve and "neutrality" as between the contending par-
ties, without according the status of belligerents to the insurgents,
was indeed strikingly confirmed by the practice of States in the Spa-

nish Civil MTar.This is not ta say that, in India's view, recognition of
insurgency brings into play al1the rights and duties of "neutrality"
in the technical sense. But the practice of the Spanish Civil War,
as well as the previous practice, shows very clearly that a State,
without any recognition of belligerency, is entitled to take measures
to prevent the involvement of its territory or its nationals in the
dispute. Thus the Parties to the Non-Intervention Agreement of
1936 undertook between themselves to forbid the supply of arms
and ammunition either to the insurgents or to the government.
Similarly, the Swiss Government, although it was 'not a Party ,
to the Xon-Intervention Agreement and although it refused recog-
nition of belligerency to the rebels, adopted an attitude of complete

neutrality between the two contending Parties. Thus, on 6 October,
rg36, the Head of the Federd Politica! Department made the fol-
lowinI,declaration in the Conseil des Etats:
...je désire ... faire quelques bréves remarques sur les con-
ditions et les motifs de notre neutralité. Mêmesi leGouvernement
français n'avait pas pris l'initiative d'une déclaration généralede *
non-intervention, leConseilfédéralaurait proclamésans hésiter la
neutralité de la Confédération ...Qui dit 'neutralité' parle non
des individus, mais de l'État. Qui dit 'neutralité'affirmesa volonté
de ne pas prendre partie entre des belligérants. La question des
sympathies et des antipathies individuelles, ou mêmecollectives,
n'a rien A faire avec celle de la neutralité. On a dit que la neutralité '
est une notion qui ne s'applique pas à la guerre civile.Celle-ci,a-t-on
ajouté,selivre entre un pouvoir légitimeet une faction d'insurgés. .
L'aide accordéeau pouvoir légitime - a-t-on conclu - n'est pas
contraire à l'idéede la neutralité ...Maispour nous, la politique de ,
neutralité représentait un devoir encore plus clair, encore plus
taire s'il n'avait pas annoncé et défininotre neutralité sans retard ,
...>
4
609. The Government of India submits that the authorities dis-
cussed in the foregoing paragraphs completely justify the statement i
in paragraph 347 of India's Counter-Mernorial that in a civil war or ,
insurrection an outside State has the right "to adopt an attitude
of cornplete rcserve and neutrality as between the Government
and the rcbels". They also show, contrary to the viewç expressed
by Portugal, that the exercise of this right does not depend on ,
the existence of an actual armed conffict between the Government
and the rebels or on any prior forma1 acts of "recognition" of the

insurgentç.296 REJOINDER OF INDIA (II 59)

610. The Government of India also feels bound to emphasize again
the absurdity of the Portuguese contention that, in the present
instance, India, by reason of the absence of any continuing armed
conflict, was not entitled to recognize the situation of insurgency
and adopt an attitude of reserve and neutrality betwcen the
Government and the rebels. The almost instantaneous succèss of
the rebels resulted alrnost at once in the cessation of the armed
conflict, the completion of the insurrection and the establishment
of a settled de factolocal administration. Thus, thc situation passed
alrnost at once beyond a situation of mere insurgency into that

of a completed insurrection with a new de facto political authority
in the rebel territory. If an outside State has a right to recognize
a situation of insurgency when the armed conflict continues, a
fortiod ries it have this right when the insurgents are corripletely
successful and establish their authority over the whole of the rebel
territory. In the present instance, moreover, the establishment of
a new de facto political authority in the enclaves produced a funda-
mental change in the circumstances which could not fail to have
a vital effect on any rights of transit which Portugal might pre-
viously have possessed between Daman and the enclaves. The

Government of India will refer to this question of the legal conse-
quences of the establishment of a riew de facto government in the
enclaves again a little later on. The, question is only mentioned
now for the purpose of underlining that only a limited importance
attaches in the present case to determining the exact scope and
conditions of "recognition of insurgency" in international law. In
regard to "recognition of insurgency", the submission of the
Government of India is that its refusa1 of transit facilities across
its territory to Portugal for the purpose of suppressing the insur-
rection clearly falls within the scopeand conditions of that doctrine.

611. Portugal in paragraphs 376-380embarks on a quite different
argument ~vhich for the purposes of this case appears to be rather
a digression. First, she asserts that even if it be considered that
there was a general insurrection in the enclaves and that the in-
surgent authorities had been recognized as the de facto government,
the continuancc of Portugai's de jure right of sovereignty would
be indisputable. In order to justify this assertion, sfie cites Judge

Lauterpaclit as authority for the proposition that "no change de
jure can take place in the established system as long as the lawful
government has not ceased al1 resistence". And she adds that,
although temporarily unable to exercise her sovereignty in the
enclaves she has not weakened in hcr determination to re-establish
her authority.

612.There are two reasons why Portugal's argument about the
continuance of her de jure sovereignty must be considered to be
completely without point in the present case. The first reason is
that hcre the insurrection is over and the establishment of a new REJOINDER OF 1NI)I.A (II59) 297
political organization in the enclaves is complete. The Portuguese
thesis that her de jztre title to the sovereignty of the enclaves still
survives is in present circumstances meaningless. The insurrection

being cornplete and the new political organization creatcd by the
rebels having manifestly become established and settled, no rule
of international lanlprecludes outside States, if they are so minded,
from recognizing the new admiriistration both de facto and de jure
as the government of the e~iclaves-as the government of an em-
bryo San Marino. The Government of Iiidia has recognizcd'the
local administration as the de facto provisional government of the
enclaves. If othcr States have not yet felt called upon to do the
same, it is only because their intereçts have not been in any way
afiected by the political changes in the enclaves.

613. The second reason is that the Government of India has not
rested any paft of its case on the hypothesis of a total and final
termination of Portugal's de jzrretitle to sovereignty of the enclaves.
The Governrnent of India has rested its case simply on the un-
doubted fact of the insurrection and the establishment of a new
de facto local administration in the enclaves. This being so, it does
not uriderstand the relevance of the Portuguese argument con-
cerning the continuance of her de jure title to sovereignty.
614. Accordinglp, it doeç not seem to the Government of India that

any useful purpose ~vould be served in pursuing the question of
the theoretical existence or non-existence to-day of Portugal's title
to de fzwe sovereignty of the enclaves. At the same time; however,
it feels entitled to point out that Portugal in the above-mentioned
paragraphs of the Reply has somewhat misrepresented the prin-
ciple expressed in Judge Lauterpacht's book on Recognition. The
principle actually stated in that book on page 94 is as follows:
"In one respect, however, the presumption in favoilr ofthe lawful
government is above controversy: the latter is entitIedto continued
recognition de jure solong as the civilwar, whatever its prospects,
is inprogress. So long as the lawful government offers resistance
which is not ostensibly lzopeless or purely nominal, the de jure
recognition ofthe revolutionary party as a government constitutes
prernature recognition ivhich the larvfulgovernment is entitled to
regard as an act of intervention contrary to international law."
The test of premature recognition there formulated is clearly quite
'
different from that indicated in the Portuguese Reply. There is
nothing in Judge Lauterpacht's text inconsistent with the recogni-
tion of the present local administration de jlactoand de jure as the
government of the enclaves. However, it is quite unnecessary for ,
the Government of India to dhvelluyon this point since, as already '
stated, it does not rest any part of its argument upon the question
of the de jzire title.
615. Another development of the same line of argument in para-
graphs 377-378 of the Portuguese Reply is not merely irrclevant ;it is completely inadmissible. Having acknowledged that India'ç
reaction to the changes which have taken place in the enclaves
has been lirnited to recognition of the insurgent authorities as a
de facto and provisional aclministration in effective control of the
enclaves, Portugal nevertheless speculates about India's future

policy and calls on India to definc her future intentions. Portugal
recalls the solicitations previously addressed by the insurgents to
the Government of India for the incorporation of the enclaves
within the Indian Ijnion. She next asserts that the purpose of the
insurgents is neither to set up a rival Portuguese Government nor
to create an independent State but to bring the enclaves under
Indian rule. Then she takes a leap into the future and saq's that,
if India were at sorne time hereafter to grant the insurgents a
recognition exceeding the limits of a "provisional de facto recogni-
tion", this would mean that-India proposed to accopt the annexa-
tion of territories falling under Portuguese sovereignty without the
consent of Portugal. And it is on this basis that she apparentIy
considers herself entitled to demand from India information as to

any possible future change in India's attitude towards the solici-
tations from the insurgents in regard to the incorporation of the
enclaves in the Indian Union.
616. The Portuguese demand isirrelevant and inadmissible because
the issue before the Court is her right of passage iii the de lacto
situation resulting from the insurrection and not Portugal's title
to sovereignty of the enclaves at some future date. Again, it is
irrelevant and inadmissible because it also concerns thc future
intentions of the de facto administration of the enclaves, an cntity
which is not before the Court.

617. In paragraph 379 Portugal turns tothe question of the "pur-
pose" of the insurgents and says that it is of capital importance. She
maintains that, when jurists speak of theattitude of third States to
an insurrection, they contemplate only cases whcre the "purpose"
of the insurrection is foreign to the third State;and she asserts that
"the entire regime of recognition of belligerency and recognition of
insurgency" is governed by this essential factor. Then she states that
in the present instance the purpose of the insurgents merges with
that of the Indian Union, as they are seeking the incorporation of the

enclaves in Tndia while the Indian Union has never disguised its wish
to see the incorporation of Portugal's Indian "territories within the
Union. And in paragraph $30Portugal goes on to assert that two
important results flow from this aIIeged link between the purpose
of the insurgents and the purpose of the Indian Union.
618. The first comment to be made on paragraph 379 is that the
considerations which it introduces are purely political. Indeed,
nothing shows more clearly the cssentially political nature of the
Portugucse claim than the arguments which Portugal advances in
this paragraph and in that which follows. REJOIKDER OF IWDIA (II 59)
299
619. The second comment is that there is no foundation in law for
Portugal's assertion that "the entire regirne of the recognition of
belligerency and insurgency" is baçed on the hypothcsis that the
puryose of the insurgents is foreign to the purposc of the third

State. On the contrary, even in the case of war between sovereign,
States the law of neutrality does not preclude a neutral State from
feeling and showing its sympathy for one or other belligerent pro-
vided thatit does not break one of the recognized rules of neutrality.
So clear isthis point that it scarcely nceds the support of authority
and the Government of India will confine itself to referring to the
relevant passage in Oppenheim-Lauterpacht (op. cd., Volume 2
(7th edition, 1g5z), p. 655):

"The required attitude of impartiality isnot incompatible with ,
syrnpathy with one belligerent, and disapproval of the other, so '
long as tkese feelings do not find expression in actions vioIating
impartiality. Thus, not only public opinion and the press ofa neutral
State, but also its Government, may show their sympathy to one
party or another without thereby violating neutrality."
620. In short, the Portuguese argument fails to distinguish be-
tween the question of maintaining an attitude of reserve and '
neutrality towards the two disputingparties in regard to the hostil-
itièsand that of sympathizingwith the sims and ideas of one ofthem.

621. NOone doubts that, when the policy of insurgents favours a
transfer of allegiance to a third State or otherwise meets with
strong synipathy on the part of the third State, the situation is
more delicate and more complicated. But the existence of a compli-
cation of this kind may well makeit even more-not less-necessary
for the third State to be in a position legally to adopt an attitude of
reserve and neutrality as between the rebels and the Government.
The institutions of "belIigerency" and "insurgency" are admitted
in international law for the very purpose of providing a regime to
regulate the delicate factual and political situation resulting from
an insurrection. Yet Portugal. apparently contends that, when the

situation resulting from an insurrection is of particular delicacy
owing to the sympathies of the outside State, the principles of
beliigercncy and insurgency are not to have any application üt all. ,
Such a contention,in the view of the Government of India, answers
itself. Could it really have been seriously argued that by reason of
its Monroe Doctrine the United States \vas disqualified from recog-
nizing the insurgency of a colonial territory in the IVestern Hemi-
sphere ? Obviously not .
'
622. In the present instance, even if the insurgents were inspired
by a wish to bring about the rnerger of Dadraand Nagar Aveli in the
Indian Union. there can be no doubt whatever as to the fact that
their first objective \vas to rid the cnclaves of Portuguese rule. In :
short, thcre was an insurrection against Portugal and India \vas
confronted with a situation of fact raising in a typical-and indeed REJOINDER OF INDIA (1159)
30°
acute-form the probleni of insurgency. The Portuguese contention
in paragraph 380 of the Reply that the dcsire of the insurgents to
merge the enclaves in the Indian Union disqualified India herself
from adopting an attitude of reserve and neutrality in face of that
situation of fact, is therefore tvithout any legal foundation.

623. The Government of India has never sought to disguise the
fact that it and the people of India were and are in full sympathy
with the wish of the insurgents to bring about the incorporation of
the enclaves in the Indian Union. But, as already pointed out, this
could not in any way deprive India of her right to adopt an attitude
of reserve and "neutrality" as between the rebels and the Portu-
guese Government. For the Government of India to have granted
transit facilities to Portuguese armed troops and police sent to sup-
press the insurrection woiild have been to implicate Indian territory

directly in the dispute and that in a sense utterly opposed to the
unanimous opinion of the people of India. The Government of
India feels justified in characterizing as altogether incredible Portu-
gal's proposition that India, by reason merely of her sympathy with
the insurgents, was not entitled to stand apart from the conflict but
was legally bound to assist in the destruction of those with whom
she sympathized.
624. The Government of India alsofeelsjustified in drawing atten-
tion to the fact that when the insurgents, having achieved their first

objective of liberating themselves from Portuguese rule, promptly
applied to have the enclaves incorporated within the Union, the
Government of India did not accede to their request. The same
restraint, as members of the Court are aware, has not always been
shown by Governments when their sympathies or their political
interests have been involved in the success of an insurrection or
cozcp d'étatin another country.
625. Portugal's other contention in paragraph 380 with regard to
the "purpose" of the insurgents concerns the possible future recogni-
tion policy of the Government of India and is really covered by
what has already been said inparagraph 616above in answer to Por-

tugal's argument about the continuartce of her title to the de jure
sovereignty of the enclaves. In the present connection Portugal,
invoking the fact that the aim of India as well as of the inçurgents
is the merger of the enclaves in the Union, contends that any
recognition of the insurgents by India not purely provisional and
not strictly limitecl to the de factositiiation would raise a problem
of territorial acquisition as between India and Portugal. This con-
tention, like the previous one about the continuance of Portugal's
dejure title, is totallyirrelevanand inadmissible because it concerns
matters which are entirely hypothetical and are not the subject of
the case now before tlie Court. The recognition so far accorded by
India to the insurgent authorities has in fact been confined to their

recognition as a provisional, de facto,local government, and it is REJOINDER OF INDIA (II 59) 301
that legal and factual situation with which the Court is alone
concerned. The Government of India does not propose to waste the
time of the Court by discussing a contention which relates toa legal

and factual situation different from that before the Court. It feels
bound, however, to express the strongest reservations about the
validity of the Portuguese contention on this point. When a people,
by a successful insurrection, haç liberated itself from an unwanted
colonial rule and has organized itself as an independent community
under a de facto government, international law-and least of al1
the Charter of the United Nations-does not place any restriction
on the right of that community to decide in full freedom its own
political destiny.

626. The Government of India çubmits that none ofthe Portuguese
contentions discussed in the preceding paragraphs of this Part
really touch the basis of the four separate arguments advanced
by India in Part VI1 of the Counter-Mernorial concerning the legal
conclusions to be drawn from the insurrection in the enclaves.
India's four arguments are, however, taken up individually by
Portugal in paragraphs 383-397 of her Reply and the Government ,
of India will now re-examine its own arguments in the light of
Portugal's observations in these paragraphs.
627. First Indian Argztment.This argument was that, even if Por-

tugal should be held to have possessed a right oftransit fortheday to
day exercise of Portugueçe sovereignty in the enclaves, that wouId
be a very different thing from a right of transit for the purpose
of suppressing a general insurrection and forcibly keeping the
peoplein subjection; and that a right of transit of the latter kind
would be a grave embarrassrnent to India's public order, involving
as it would the risk of armed conflict and riot at the borders of
the enclaves and even within Indian temtory (Counter-hlemorial,
paragraphs 345-3461.

628. Portugal, it is true, begins by questioning the general charac-
ter of the insurrection in the enclaves. This point, however, has al- ,
ready beendisposed ofin paragraph 599above, andthere is no need to
deal with it again, Portugal's main contention is that, even if there
was a general insurrection in the enclaves, India, by reaçon of the
responsibility which she iç said to have in the events of the insur-
rection, is precluded from pleading the dangers to her own public
order as a ground for not performing her alleged obligations to
Portugal. Portugal alleges that before the insurrection India took
certain measures which weakened the position of Portugal vis A
vis the insurgents; that India refused the prompt request for ,
transit facilities made by Portugal; that if India had not done so,
order codd have been restored by comparatively small contingents
and without the kind of repercussions which India now states that
she fears; that the inçurgents have become stronger; if order cannot

now be restored under the same easy conditions as in 1954 ndia
21 302 REJOINDER OF IKUIA (II 59)
is not entitled to rely on this new situation in order to justify the
non-fulfilment of her obligations to Portugal.

629. The Government of India has already given, in paragraphs
457-502 above, its reply to the Portuguese complaints concerning
certain measures which it is said to have taken in furtherance of the
insurrection. The Government of India, as the Court will recall,
strongly denies that it took any such measures and vigorously con-
tests Portugal's allegation that India's legal responsibility with
respect to the events of the insurrection period is in any uray in
issue in the present case (see India's reservation on this point in

paragraphs 9-10 of the Introduction).
630, In any case, even if the Court were to find that India had
shown çomelack of due diligence in failing to prevent the Goans from
entering the enclaves, and had thereby incurred some legal res-
ponsibility toward Portugal with respect to the insurrection, that
would not have the legal consequences which Portugal claims in

regard to the question of transit over Indian territory. It does not
at al1 follow that, because India may have incurred some legal
liability towards Portugal with respect to the events of the insur-
rection, she is now precluded from invoking the dangers to her
public order and the increased strength of the insurgents in justi-
fication of her refusa1 of transit facilities to Portuguese armed
forces and police. The question now in issue is ~vhether any rights
of transit which Portugal may possibly have posseçsed have any
force or application at al1 in the circumstances of a general insur-
rection in the enclaves. This question is quite distinct from the
question of India's possible responsibility in law for a failure of
due diligence in preventing the entry of the Goans into the enclaves.
The latter question, if resolved in Portugal's favour, might, no
doubt, result in India's being under some form of legal liability

towards Portugal in accordance with the principle endorsed in the
Corfu Channel Case, that a State is under an obligation not to
' allow knowingly its territory to be used for acts contrary to the
rights of other States (I.C.J. Reports 1949, p. 22). But that is not
the question before the Court. The question before the Court is
the quite different one whether, the insurrection having occurred
and the transit of armed Portuguese troops and police now involving
a grave risk of implicating Indian territory in the conflict, Portu-
gal's alleged rights of transit are legally of any application in such
a situation. In the Corfu ChanneL Case itself, as the Court will
recall, the grave breach by Albania of her obligation not to allo~v
her territorial waters to be used for acts contrary to the rights of
innocent passage possessed by other States was nevertheless held
not to deprive Albania of her right to object to the entry ofBritish
warships into those territorial waters for the purpose of removing

the mines obstructing the passage. Similarly in the present case,
the question of any possible responsibility on the part of India for REJOINDER OF INDIA (1159) 3O3
not preventing the entry of the Goans into the enclaves is an issue

wholly distinct from the question of the exercise of Portugal's
rights of passage once the insurrection had begun.
631. Portugal, however, has put forward an additional argument
on the same point. She contends that only "clear dangers of really
senous impact upon the Indian public order could stand in the
way of Portugal's cxercise of the right of passage" and shequestions
the reality of India's fears of riots at the borders of the enclaves
and even within Indian territory. She asserts that India could
easily guard against these dangers by adopting simple precau-

tionary measures. She adds that, if the passage of Portuguese
forces appeared at any moment likely to provoke acts of violence
on Indian territory, the Government of Portugal would not hesitate
to agree to a momentary suspension of the passage for that reason;
but that only an objective evaluation of the facts would make it
possible to dctcrmine the extent to which passage rnight possibly
be suspended.
632. The Government of India feels that it is entitled to inquire
whathas become of the Portuguese thesis of a right of transit without

immztnity, without exemptiolz /rom the exercise of India's territorial
sovereignty, withoztt exemption from Me requirernents of India's
pz4blic order. Portugal now appears to take the position that no
mere possibility, however obvious, of riot or disorder at the borders ,
of the enclaves and in Indian territory would be enough to justify
India in refusing the passage of Portuguese armed forces. If India
considers that there is such a possibility, she is apparently expected
by Portugal to take active steps to prevent any riot or disorder '
either along the transit route or at the frontiers of the enclaves.
Thus, Portugal's alleged rights of transit, it seems, oblige India
to CO-operate actively with Portuguese armed forces in their at-
tempt to launch themselves upon the insurgents in the enclaves.
The Government of Portugal certainly shows realism in recognizing

that this is what its claim must mean in actual practice. But, in
the view of the Government of India, the very fact that the Por-
tuguese claim would mean this in practice is enough to demon-
strate its total lack of any foundation in international law. Nor ,
can such a claim possibly be regarded as a claim to rights of transit
without any immunity from India's jurisdiction.
633. Again, the.Portuguese claim cannot possibly be said to be a
claim to rights of transit without exemption frorn the exercise of

India's sovereignty, when India's evaluation of facts, which clearly
carry a certain measure of danger to India's public order, is not to be
accepted by Portugal but may be opposed by contrary assertions
advanced by Portugal as tothe exact degree of the danger. Granted
the existence of facts involving some possibility of disorder, the
power of appreciating the risks of public order isa power inherent
in the sovereignty of India. Yet Portugal would now deny to India3O4 REJOINDER OF INDIA (II 59)
the exercise of this power so far aç concerns the transit of Portu-

guese arrned forces across Indian territory.
634. In any event, Portugal's theorizing about the extent of the
risks to India's public order and her effort to minimize thern are
entirely unconvincing. The danger of riot and disorder at the borders
of the enclaves and in Indian territory is so starkly obvious that it
scarcely seems to need elaboration. Al1available information indi-
cates that the authorities and people of the enclaves will strenuously
oppose any Portuguese troops or police who try to re-establish Por-

tuguese çovereignty there. Indeed, they might even seek to prevent
the entry of Portuguesetroops or police at an earlier stage by blow-
ing up a key point on the Daman-Silvassa road. Itneeds very little
imagination to see what would happen if Portuguese troops were
to attempt to enter the enclaves from Indian territory. Portugal
complains that in putting the matter in this way, Indis is only
stating the most extreme possibility. That is not the case at all.
India is only stating the obvious probabilities of the situation.
A confiict between the insurgents and the Portuguese is almost a
certainty.

635. Second Indian Argziînent. This argument was that, confront-
ed by a civil war or insurrection in another country, a State is
entitled to adopt an attitude of complete reserve and neutrality as
between the Governrnent and the rebels (Counter-Memorial, para-
graphs 347-3491-
636. The objections raised by Portugal tothis argument have really
al1been deaIt withalreadyinparagraphs 601-610above. The Govern-

ment of India believes that it has demonstrated in those paragraphs
that, confronted with an insurrection in the enclaves and then with
the establishment of a de facto local government, India was and is
now fully entitled to refuse to allow Portuguese srmed troops or
police to cross her territory for theurpose of launching themselves
against 'the rebels and suppressing the de facto government. It
believes that it has also demonstrated that its right to take steps to
prevent its territory from being implicated in the dispute between
the Portuguese Government and the rebels is not in any way modi-
fied by the fact that its own sympathies lie with the rebels. It does
not, therefore, propose to re-examine here the Portuguese Objec-
tions to the second Indian argument on the effect of the insurrec-
tion on the Portuguese claim and will confine itself to commenting
briefly on an observation made by Portugal in paragrsph 389 of the
Reply with reference to the Wimbledon case.

637. In the WimbLedon case, despite the express treaty grant of
transit to the vesseEs of al1nations at peace with Gemany, Judges
Huber and Anzilotti held in their joint dissenting opinion that Ger-
rnany's right under general international law to be neutral in a war
between two other States ought to prevail over the rights of transit REJOINDER OF INDIA (II59) 3O5.
granted in the Treaty. Portugal seeks to dispose of the view of these
erninent judges by saying that Germany hadno personal stake in the
conflict then in progress betweeii Poland and Russia-that the war
aims of neither belligerent coincided with Germany's own interests.

Germany, she contends, could therefore lawfully remain neutral in
the conflict, whereas in the present case India is not disinterested in
the outcome and cannot laurfully adopt a position of neutrality.
Portugal's observation on the Wimbledon case is, of course, only a
repetition in a particular form of her general contention about the
effect of India's sympathies with the aims of the insurgent5 upon
her right to take up a position of neutrality iri regard to the passagc
of Portuguese troops. Her observation on Germany's position in
that case does, however, serve to iinderline the fallaciousness of the
Portuguese contention on this point. For it seems obvious that, if

the war aim of either belligerent had been one in which Germany
could not be said to be disinterested, it would have been al1the more ,
vital for her to have the legal possibility of adopting a position of
neutrality in order that she might not immediately be drawn into
the war. It would be a disastrous principle if possession of an inter-
est in the outcome of a conflict or of sympathy for one side should
deprive a State of al1legal possibility of keeping out of a war.
638. The peculiarly delicate position of a State, whose territory

surrounds a foreign encIave that is in a condition of rebellion, has
previously been emphasized. The right to adopt an attitude of re-
serve andneutralityis cIearly of especial importance to such a State,
and in the nature of things the most likely way in which the right ,
will find its expression will be in a refusa1to allow armed forces to be
sent across its territory for the purpose of putting down the insur-
rection.
639. Third Indian Arguwzent.This argument was that, whatever

may be the precise scope of the obligations imposed upon Blembers
of the United Nations by the provisions of the Charter concerning
respect for national aspirations, there can be nodoubt that they must
not lend their aid, orhave any part in or give any assistance to any
action calculated to suppress by force the efforts of people who are
seeking to establish, or have established, their liberty (Counter-
Mernorial, paragraphs 350-351).
640. Portugal cornplains that this argument is rather vague and
that India has not indicated the precise provisions of the Charter on

which she relies. Portugal denies that any basis can be found for
India's argument in the provisions of Article 38 (1) of the Statute of
the Court. The Government of India feels sure, bowever, that
Portugal, as a Member of the United Nations, is fully aware of the !
several provisions of the Charter to which the Government of india
was alluding in its Counter-Mernorial. Not only Article I,but also
Articles 55, 56 and 62 contain provisions which express the pur- ,
pose of the United Nations to promote tothe utmost the realizationof human rights and fundamental freedorn for all. Precisely what is
the scope of the positive obligations which result from these provi-
sions for Memberç of the United Nations may be a matter which
requires further elaboration and clarification. But indis's conten-
tion is that, whatever rnay be the position in regard to the positive
obligations imposed by these provisions, it is clear that a Member

of the United Nations is at any rate under nnegative obligation to
abstain from action which is diametrically opposed to the whole
purpose and spirit of those Articles.
641. Accordingly, India's third argument, having its basis in spe-
cific provisions of the Charter, an international convention, cannot
lcgitimately be said to have no basis in Article 38 (1) of the Statute.
But in truth, Article 38 (1) does not seem necessarily to Ije very
relevant in this connection. The right on which India fundamentally
relies is the right which a State has, under customary law, to recog-

nize a situation of insurgency and to adopt an attitude of reserve
and neutrality in face of that situation. The principles found in the
Charter, which India has invoked, whether they are regarded as
legs1 or moral principles, give additiona1 support to India's clairn
that she was and is justified in refusing to allow Portuguese armed
forces and police to cross her territory for the purpose of ovcr-
powering the rebels and suppressing their bid for freedom.
642.Fourth Indiajz Argument. This argument was that account has

to be taken of the actual existence today of a de facto local govern-
ment in the enclaves. It is no longer a question of rights of transit
merely for the purpose of exercising Portuguese sovereignty in the
enclaves. The purpose now is to oust a rival government and reim-
pose Portuguese rule. Consequently, the case is not one which
simply concerns Portugal and India. In the background there is a
third entity, the de facto local government which is unable to speak
for itself before the Court. This, India contends, is a further reason
precluding the Court from holding that India is under some obliga-
tion to permit the transit of Portuguese armed forces across Indian
territories into the territory of the de facto local government
(Counter-Mernorial, paragraphs 352-357).

643. Portugal does not deny the existence of the de facto local ad-
ministration in the enclaves. On the contrary, in paragraph 394 she
expressly admits it :"There is no doubt that the administration of
the enclaves is now in the hands of the invaders," Accordingly, the
Court is confrontcd by a de facto local government the existence of
which is accepted by both parties. Portugal, however, claims that
the existence of the de facto local government has no significance
because, she alleges, it has no capacity as a subject of international
law. This capacity, she maintains, is only to be acquired through
recognition granted by outside States and she baldly asserts that
the de fado locaI administration has not even received recognition
from India, REJOINDER OF INDIA (II59)
3O7
644.ifTithal1respect to India's learnedopponents,itis not for thern
to say whether India has or has not recognized the insurgent author-
ities asa dsfacto local government. Recognition is a question of the
express or implied intentions of the recognizing State.The Govern-
ment of India made India's position clear in paragraphs 353-4 of

the Counter-Mernorial. It has not recognized the insurgent adminis-
tration as the Government of anew State; but it has rnost definitely :
recognized the insurgent administration as a de Jacto provisional
Government in effective control of the territory of the enclaves.
That the limited recognition given by India to the insurgent
administration is fully in accord with international law is not open
to any doubt. Thus Judge Spiropoulos in his book "Die de facto
Regierzing inz Volkerrecht" expresses the view that the effective
domination of a territory sufices for the creation of a valid de
facto local government (Kiel, 1926, p. 59). Again, Judge Lauter-
pacht says in his book on Recognition: "It is not contrary to inter-
national law to recognize the insurgents as a governrnent exercising

de facto authority over the territory under its control" (op. cit.,
p. 294). Furthermore, modern State practice contains numerous
examples of the recognition of djactolocal authorities. For example,
Great Britain in 1918 recognized the Esthonian National Council as
a "de facto independent body" and received informal diplomatic
representatives of the "Esthonian Provisional Government" (The
Gagara, 1919 Probate Reports, p. 95). SirnilarIy, i1938 the United
Kingdom recognized the "Nationalist Government" as a "govern-
ment which at prescnt exercises defacto administrative control over
the larger portion of Spain". (The Arantzazu Mendi, 1939 Appeal
Cases, p. 256.) A nurnber of other States also recognized the Natio-
nalists asa de facto government of parts of Spain; Padelford, Inter-
national Law and Diplornacy in the Spanish Civil Strife, page 6,

footnote 18.
645. In its Advisory Opinion on Rsparation for Injztries s~fleredin
the Service of the United Nations (I.C.J. Reports 1949 ,t page 178) .
the Court itself pointed out that the subjectsofinternational law in
any legal system are not necessarily identical in their nature r oin the '
estent of their rights and that the subjects of international law are
not confined to States. That de facto local governments are in a
certain measure subjects of international law is very clearly stated
by Professor Morelli in the passage set out in paragraph 354 of
India' s Counter-Mernorial, where he includes them among "d'autres
groupes sociaux organisés qui sont pourvus de la personnalité juri-
dique internationale". The same position is taken by Guggenheim

(T~aité de Droit international public, Vol. I,pages 202-203) and
by Alf Ross (Text Book of International Law, p. 122).The United
Kingdom Courts have perhaps gone furthest in the measure of the
legal capacity which they attach to de jacto Iocal governments (see
cases discussed in Lauterpacht, op. cit.,Chapter XVII). Although
some difference of opinion rnay exist as to the precise extent of the REJOINDER OF INDIA (II 59)
30~
legal capacity of a defactolocal government under international law,
there can be no doubt, inthe view of the Government of India, that
such a de facto government has a definite, if limited, capacity as a
subject of international law.

646. India, as stated above, has recognized the existence of a pro-
visional de facto local government adrninistering the enclaves of
Dadra and Nagar Aveli. Accordingly, so far as India herself is
concerned, that local government undoubtedly possesses a measure
of internationallegal personality. The fact that India has recognized
the rebel administration as having the status of a de facto local
government makes it unnecessary to enterinto the doctrinal debate
concerning the question whether "recognition" is declaratory or
constitutive in its effects. That it is unnecessary to go into this

question would also seem to be confirmed by the fact that in para-
graph 394 of her Reply Portugal, as previously pointed out, has
admitted the existence of a separate dejacto administration in the
enclaves.
647. In any event, a large and weighty body of opinion is opposed
to the extreme constitutive view of recognition and international
tribunals have not hesitated to give full effect to the reaIity of
the existence of a de facto government regardless of its recognition.
In the Tinoco Concessionsarbitration, for example, between Great

Britain and Costa Rica, Chief Justice Taft gave full effect to the
acts of the Tinoco Government, a revolutionary government of
Costa'Rica, despite the fact that it had never been recognized by
Great Britain or by other leading Powers. The Tinoco Government
had granted concessions to British subjects which had been can-
celled by the succeeding government of Costa Rica. Great Britain,
although she had expressly declined to recognise the Tinoco
Government while it existed, brought a claim against Costa Rica
in respect of the Tinoco Governrnent's concessions on the basis
that de facto it was the Government of Costa Rica when it granted
the concessions. Having found on tlie evidence that the Tinoco
Government had in truth been an effective, de facto government

when it granted the concessions, Chief Justice Taft held that the
failure of Great Britain to recognize that Government üt the time
did not preclude her from asserting tlie validity of its concessions
(Reports of International Arbitral Azeiavds,Vol. 1, 1923, p. 375).
648. The Government of India, therefore, believes that it is fully
juçtified in its subrnission that the existence of a de facto local
government in the enclaves is a fact which cannot be left out of
account in the present case. Portugal, however, tries to meet the
dificulty by asserting that the Court caniiot take account of the
rights of the defacto local government, because it is not an entity,

having the capacity either to appear as a party beforc the Court
or to intervene in a case under Article 62 of the Statute. The
Government of India cannot see that there is any rekition between REJOIKDER OF IKDIA (II 59)
3O9
the question whether the de facto Iocal government has zapacity
to be a party before the Court, or to intervene in a case, and the
question whether its existenceis a fact which has to be taken into
account, The question at issue is not one of access to the Court.

The question is whether the Court can properly administer justice
in the case without taking account of the existence of de facto local
government, which is necessarily not itself before the Court. In the
Monetary GoEd Clase(I.C.J. Reflo~ts 1954, p. 3z), the Court held
that it was impossible to administer justice between the United
Kingdom and Italy when the interest of a third party, Albania,
was directly involved in the case and Albania was not before the
Court. Admittedly, Albania was a State and, although not a party
to the Statute of the Court, was capable of quaIifying herself to
appear before the Court under Article 93 (2)of the Charter and

Article 35 (2) of the Statute. The fact is, however, that Albania
had not so qualified herself to be a Party to a case before the Court,
and it also happens to have been the fact that Albania was not
in diplomatic relations with the United Kingdom. At any rate it
seems clear that the Court's refusal to pronounce on the respective
merits of the contentions of the United Kingdom and Italy had
nothing whatever to do with the question whether or not Albania
was qualified to be a Party before the Court or to intervene in
the case, That refusal was founded on the simple principle that,
in the absence of Albania, it was impossible for the Court properly
to administer justice in the case.

649. No doubt, the legal status in international law of the de jacto
local government is different from that of Albania. But, in the
submission of the Government of India, it isnot a difference which
in any way affects the application of the fundamental principle of
justice on which the Court acted in the Monetary GoldCase. Thus,
the existence of the de facto local government in the enclaves is

a distinct, independent obstacle to the Portuguese claim that the
Court should declare lndia to be under an obligation to permit
the transit of Portuguese armed forces and police and officiais
across Indian territory frorn Daman to the enclaves.
650. Each one of the four arguments advanced by India in Part VI
of the Counter-Mernorial and re-stated above presents, it is sub-

mitted, a complete and sufficient answer to Portugal's clairn to
exercise her alleged rights of transit in the particular circumstances
of the insurrection in the enclaves and of the establishment of a
de facto local government there. India's answer to Portugal's clairn
miglit equally be put in a more general way on the basis of the ,
fundamental change in the situation resulting from the insurrection I
and the establishment of the de facto local government-on the
basis, that is, of the doctrine rebus sic slantibus. Portugal's clairn
is to rights of transit across Indian territory to the extent required
by the exercise of Portuguese sovereignty in the enclaves. Whether REJOINDEK OF INDIA (II59)
31°
her alleged rights are regarded as founded upon treaty, custom or
general principles of law, the insurrection and the establishment
of the defacto local government are new facts which fundamentally
change the basic elements of the situation which is said to have
given rise to Portugal's rights of transit across Indian territory to
the ericlaves. If Portugal's alleged rights of transit are considered

to be derived by implication from the Maratha Treaty, the basis
for niaking that implication from the Treaty has gone; if from
custom, the basis of the usage has gone; and if from general prin-
ciples of law, the basis of the principle relied on by Portugal has
gone. The Court may also feei that, at best, Portugal's alleged
rights of transit werea vestigial survival of the old order in India
and that they are altogether out of place in the fundamentally
differentpolitical conditions obtaining in India to-day.

Part V

CONCLUSIONS

651. The Government of India does not find it necessary at this
stage of the case, after careful study of the Portuguese Reply, to
alter the statement ofIndia's conclusions which is contained in Part
VI11 of the Counter-Mernorial. It reserves the right, houtever, to
present at the oral hearings a further statement of its conclusions
covering both the matters dealt with in the pleadings on the merits
and the matter raised by India's Fifth and Sixth Preliminary Objec-
tions.

(Signed) JOHN ALOYSIU SHIVY,
Agent of the Government
of India.

Pebruary, 19 jg.