JUDGMENT <NAME>, J.

1. This application by the second party is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure. It has come before this Bench on a reference made by me while sitting singly.

2. The proceeding, which was drawn up under an order of the Sub-divisional Magistrate of Jamui dated the 18th January, 1956, related to a total area of 14.84 acres of lands comprised in seven khatas, namely, khatas Nos. 189, 50, 128, 84, 175, 33 and 239, in Village Basmatha, tola of mauza Anandpur, within the jurisdiction of Lakshmipur <ORG> in Jamui Sub-division.

The only details given in the proceeding, which was drawn up, were the khata numbers, plot numbers and the area in dispute. There was nothing to indicate the total area of any of the plots, nor was there anything to show that the whole or a portion of any of the plots, numbers of which were given, was in dispute. Admittedly, the parties were at issue as to the possession over only portions of some of the plots; but there was nothing in the proceeding to indicate the direction in which the disputed portions in those plots lay. The boundary of none of the plots, or portions of the plots, was given.

The police report, on the basis of which the proceeding was drawn up, also contained no additional details about the disputed lands. The learned Advocates for both parties have admitted before us, that, with the exception of the khatian of khata No. 239 (exhibit 6), the khatian of none of the other khatas has been put in evidence.

It is also conceded that there is nothing in the written statement of, or the evidence adduced by, either party to show the total area of any of the plots in dispute or to show on which side of a plot, in which only a portion was claimed, the disputed portion lay.

The position thus is that it is not possible to ascertain either from the proceeding or from any other material on the record whether the whole of any of the plots mentioned in the proceeding is in dispute, nor is it possible to ascertain from which direction a portion of any plot is in "dispute.

3. By an order dated the 6th June, 1956, the learned Magistrate referred the case under Section 146 (1) of the Code of Criminal Procedure to <ORG>. He made no attempt whatsoever in that order to discuss the evidence, or to make an attempt to come to any conclusion on the question of possession over the subject of dispute, but merely said that the dispute was of a chronic nature, that the parties had (been?) fighting for some time, that "a finding on the factum of possession after a thorough examination of" the parties' contentions would be the only permanent solution, and that it was not possible for him to arrive at a decision regarding the actual possession on "the facts, evidence and circumstances so far available".

4. The reference was heard by Mr. <NAME>, Subordinate Judge, and <ORG>, Monghyr, in his order dated the 25th May, 1957; he held that <NAME>, <NAME>, <NAME>, and <NAME>, sons of <NAME>, who were the first four members of the first party, were in possession of the disputed lands. In the course of his order, however, he indicated that portions of several plots were in dispute, and that, as they had not been properly described in the proceeding, they could not be ascertained. At the end of the order, he said :

"Some of the disputed lands are portions of plot not clearly described in this proceeding. Hence the Magistrate should ascertain those portions and describe them by their boundaries to avoid future trouble before making the order absolute in respect of them also against the second party. Let the record be sent back to the learned Magistrate for needful."

5. On the 25th June, 1957, the first party filed a petition before the Sub-divisional Magistrate in which they indicated the side from which they claimed portions in eleven plots of five of the disputed khatas. They also mentioned the total areas of those plots and the areas claimed by them; but they made no reference to the lands of two of the khatas in dispute, namely, khatas Nos. 175 and 239.

I may here mention that it appears from the learned Subordinate Judge's order that plot No. 3195 of khata No. 239 measures 32.38 acres and is recorded as gairmazrua malik. The first party claimed to have taken the whole area in settlement from the landlord before their zamindari vested in the State. On the other hand, <NAME> of the second party, who is petitioner No. 1 in this Court, claims 1.50 acres only out of the plot. No description of the disputed part has, been given in the petition. As to khata No. 175, the learned Subordinate Judge has stated that the disputed portion of plot No. 2320 of this khata has not been fully described. The first party has not specified that portion also in his petition.

6. The Subordinate Judge's order was first considered by a Magistrate on the 20th August, 1957. In the order which that Magistrate passed on that date, he has stated with reference to the finding of the Subordinate Judge :

".................. it is found that the finding of possession is not capable of declaration inasmuch as several plots, alleged to be in dispute, are in parts and neither the proceeding nor the evidence nor the judgment of <ORG> decide as to which part or half and from which direction is the subject-matter of the dispute in respect of which the possession is decided. The judgment directs the Magistrate to fill up this lacuna by ascertaining further details in this respect from the parties by taking evidence, if necessary.........

I have my misgivings that the function of <ORG> and the Magistrate is about to be mixed up and even confused if a regular enquiry as to the part of the plots concerned are taken up at the end by the Magistrate."

The matter was subsequently put up before the Sub-divisional Magistrate, who, by his order dated the 23rd October, 1957, merely said with reference to the Subordinate Judge :

"Possession as found by him is held under Section 145 (6) and any disturbance in absence of the order of a competent Court is forbidden."

The petitioners have filed this application against that order.

7. Appearing on behalf of the petitioners, Mr. <NAME> has argued that, as the subject of dispute was not fully described and ascertained, the reference by the Magistrate to <ORG> under Section 146 (1) of the Code of Criminal Procedure was incompetent, and, for that reason, the entire proceedings thereafter, those before the Subordinate Judge as well as those before the Magistrate are illegal and void. On the other hand, Mr. <NAME>, who appears on behalf of the opposite party, has argued that the Magistrate has merely disposed of under Sub-section (1B) of Section 146 the proceeding under Section 145 in conformity with the decision of <ORG> which cannot be challenged by way of appeal, review or revision. On this basis, he has urged that this Court cannot interfere. It is necessary to consider these arguments.

8. It is manifest that the subject of dispute in a proceeding under Section 145 of the Code of Criminal Procedure must be fully ascertained. The Magistrate is required in such a proceeding to find which of the parties was in actual possession of the subject of dispute on the date on which the initial proceeding was drawn up, except in the case of forcible dispossession within two months next before that date with which we are not concerned in this case. The finding given by the Magistrate binds, at least, the parties to the proceeding if not others.

In case of a subsequent dispute, the successful party can put the order under Section 145 in evidence to show that he was found to be in possession. If the unsuccessful party disturbs his possession, that party may, in suitable cases, be dealt with under Section 188 of the Penal Code. If, therefore, the subject-matter is left vague and cannot be ascertained even with reference to the materials on the record, read with the initial proceeding, the entire purpose of a proceeding under Section 145 would be frustrated. It is hardly necessary to refer to any decision in support of this conclusion; but, as two decisions have been brought to our notice, I may mention them.

9. In Maharaja <NAME> v. Maharaja <NAME>, 5 Cri LJ 32, the Magistrate had attached the subject-matter of dispute under Section 146 of the Code. A Bench of <ORG> set aside that order and observed:

"In order that an order might be passed under Section 145 or 146, Criminal Procedure Code , the subject-matter of the dispute must be clearly determined. In this case the Magistrate distinctly says that he has not been able to determine what the claims of the respective parties are, and it is evident that no order could be passed under such circumstances except an order under Section 146 . In our opinion, the subject-matter of dispute should have been determined first, and then a proceeding should have been drawn up under Section 145 ."

10. <CITATION> , AIR 1952 Pat 234 Das, J. (as he then was) stated :

"........... the final order passed in the proceeding can have no meaning, unless it is known for certain what is the subject of dispute in respect of which the final order has been passed."

11. Mr. <NAME> has, however, argued with great vehemence that non-description or misdescription of the subject of dispute in a proceeding under Section 145 is not a fatal defect, if the parties knew it fully well, and they did not raise any question about its identity. He has relied upon several decisions, and I will consider them; but it seems to me that his argument cannot be accepted in the form in which he has put it.

The correct principles may be stated as follows. The initial proceeding should contain full descriptions of the subject of dispute so that it can be definitely ascertained without any difficulty. If that is not done, the defect is ordinarily fatal; but, in cases where the parties have not raised any dispute as to the identity and there are materials on the record which can lead to its positive identification, the defect may be condoned. The mere fact that the lands are well known to the parties, who have not questioned its identity, is not sufficient because, in case of subsequent disputes, one party may point out one piece of land or one thing as the subject of dispute and the other party may point out another piece of land or another thing. On this basis alone, the final order under Section 145 would become quite ineffective and inoperative.

12. The earliest case which Mr. <NAME> has brought to our notice is that of <NAME> v. <NAME>, 5 Cal WN 563. <ORG> of <ORG> has held in that case that "there can be no question that what is required is that the disputed land should be thoroughly well ascertained by both parties". Their Lordships, however, repelled an argument that, no specification of the boundaries of the disputed lands having given in the proceeding, the Court could not proceed to decide the question of possession. They observed:

"......... from first to last, the parties were not at issue upon the question as to what the disputed lands were and not only were the parties not at issue on this matter but neither the <ORG> nor anybody concerned in this dispute was under any misapprehension as to this point. The real question in dispute was which party held a Civil <ORG> decree for possession of this land."

It seems that, although the disputed land was not fully described in the proceeding, its description was contained in the <ORG> decree. That being so, there was material on the record from which the disputed land could be ascertained, and, as the parties had not raised any question in respect of the identity of the land, their Lordships refused to interfere.

13. The next case is a decision of a single Judge of this Court in <NAME> v. <NAME>, 21 Cri LJ 625 : (AIR 1920 Pat 219). His Lordship overruled the objection that the proceeding was bad as it did not indicate the specific plots in dispute by saying that "the parties fully knew what the lands in dispute were", and, therefore, no prejudice had been caused to them. With great respect, I think that the rule laid down in that case is too wide. As I have pointed out, the mere fact that the parties knew the disputed land is hardly of any use because they may not agree as to its identity in case of future dispute.

14. <CITATION> , AIR 1952 Cal 713, Chakravartti, J., has stated that the description of the disputed property as contained in the proceeding was too wide, but its description as contained in the police report was correct. Referring to the incorrect description in the proceeding, <NAME>, J., has observed:

"This defect in the order would have been fatal but for the fact that all the parties knew exactly what the dispute was and dealt with the same in their respective written statements. There was, therefore, no prejudice suffered by any party by reason of the inaccuracy in the description of the disputed property."

It is clear, therefore, that there was material in the shape of the police report in that case where-from the disputed land could be definitely ascertained, and, as the parties knew exactly what the land in dispute was, their Lordships did not interfere.

15. The last case, which has been brought to our notice, is a decision of the Judicial Commissioner, Tripura, in <CITATION> , AIR 1958 Tripura 37. In that case also, there was material on the record from which the disputed lands could be positively found out.

16. There is thus ample support for the views which I have expressed as to the real principles. In the present case, the parties may have known the lands in dispute; but there is no material on the record from which they can be ascertained beyond doubt. In fact, the Subordinate Judge was quite vague about them, and the order of the Magistrate dated the 20th August, 1957, shows that there was a great confusion, and that he was quite perplexed as to the action which he should take. The filing of the petition dated the 25th June, 1957, by the first party did not serve any purpose. Such a petition filed after the Civil Court has given its decision cannot be made the basis of any order by the Magistrate. Besides, the petition is defective, as I have already pointed out. Though the first party gave some description of the portions claimed by them in eleven plots of five khatas in that petition, they did not even make an attempt to describe the portions of lands in dispute in the remaining two khatas. The Magistrate could not ascertain the lands in dispute without hearing both parties and taking their evidence into consideration. Ultimately, the Subdivisional Magistrate did not make any effort to determine the disputed lands, and just passed an order in accordance with the latter part of Sub-section (1-B) of Section 146 . The disputed lands, therefore, continued to be vague and unascertained in this case.

17. The question which now arises is whether this Court can interfere with the order which has been passed. Sub-section (1-D) of Section 146 provides that no appeal, review or revision shall He from any finding of <ORG> given on a reference under the section.

<ORG> gives its finding on the question of possession under Sub-section (1-A) and transmits it to the Magistrate under Sub-section (1-B). In view of Sub-section (1-D), it is manifest that <ORG> finding cannot be challenged by way of appeal, review or revision against it. There is no provision, prohibiting an appeal, review or revision against the Magistrate's final order; but that order has to be passed by him under Sub-section (1-B) "in conformity with the decision of <ORG>". If, therefore, there is a proper reference under Section 146 , this <ORG> cannot interfere with the Magistrate's order in a revision directed against it except on the limited point that it is not in accordance with the decision of <ORG>. This is because there can be no interference with the findings of <ORG> even indirectly. <NAME>, J., has, in <CITATION> , AIR 1959 Mad 111, quoted an observation from <ORG>, 1899 AC 626, which is very apt and which is as under:

"It is very familiar principle that you cannot do that indirectly which you are prohibited from doing directly,"

The learned Judge has given his conclusion as follows :

"Therefore, for this court to go into the correctness of the findings of <ORG> would to do a thing indirectly what is directly prohibited. What utmost this court can do in revision is to ascertain whether the criminal court has implemented the decision of <ORG>." With respect, I am in entire agreement with this view. Similar views have been expressed by <NAME>, J., in <CITATION> , AIR 1959 Cal 366 and <NAME>, J., in <CITATION> , AIR 1959 All 568.

18. I have now to consider the legal position which arises if the reference is altogether incompetent. This question did not arise in the cases which I have referred to, and no other case on the point has been brought to our notice.

19. Sub-section (1) of Section 146 lays down that a Magistrate can make a reference to <ORG>, (1) if be is of opinion that none of the parties was in possession of the subject of dispute on the date of the proceeding, or (2) if he is unable to decide as to which of them was then in such possession. As I have already said, the Magistrate did not, in this case, make any attempt whatever to consider or discuss the evidence in order to find whether one or the other party was in possession or none of the parties was in possession. A Magistrate cannot take recourse to Section 146 (1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to <ORG>. I must therefore, express my strong disapproval of the way in which the Magistrate referred the present case under Section 146 to <ORG>; but I am unable to hold that the reference is incompetent merely for that reason.

A more important defect, however, is that he left the subject of dispute entirely vague. Had he made any effort to decide the question of possession, he would himself have discovered that the subject of dispute could not be ascertained on the basis of the proceeding or any material on the record. The present difficulty would not then have arisen.

20. Sub-section (4) of Section 145 provide? that the Magistrate should decide the question of possession of the subject of dispute without reference to the merits or the claims of any of the parties to a right to possess it. Unless the subject of dispute is ascertainable, there is nothing on which the finding of possession can operate. If the Magistrate makes a reference under Section 146 without drawing up any proceeding under Section 145 , or if he does so when the subject of dispute is altogether vague, it seems to me to be perfectly clear that the reference made by him must be held to be incompetent and illegal. That being so, I agree with Mr. <NAME> that the entire proceedings after such illegal reference must be struck down as being without jurisdiction. No power has been given to <ORG> to direct the Magistrate in its decision on a reference made under Section 146 to ascertain the lands in dispute as the learned Subordinate Judge has done in this case. It is abundantly clear, therefore, that those lands must be ascertained before the reference is made. I must, however, guard myself against being misunderstood. A slight misdescription or want of some particulars of the subject of dispute cannot make the reference illegal. That will happen only if the subject is left quite vague and cannot be ascertained from any material on the record.

21. I have not considered the merits of the decision given by the Subordinate Judge in this case for the simple reason that this Court cannot interfere with his decision or consider its correctness. As, however, the decision is without jurisdiction on the ground that the reference was incompetent, neither that decision nor the learned Magistrate's final order can be upheld.

22. For the reasons given above, I allow the application, and set aside the Subdivisional Magistrate's final order. The proceeding, which is highly defective, is also quashed; The Subdivisional Magistrate will call for a report from the police and will also hear the parties. If he feels satisfied that an apprehension of a breach of the peace continues and that action under Section 145 of the Code of Criminal Procedure is necessary, he will first ascertain the disputed lands. Thereafter, he will draw up a proceeding, giving sufficient details and descriptions of the lands in dispute so as to enable any one to identify them easily. Such a proceeding, if drawn up, will be disposed of in accordance with law.

Untwalia, J.

23. I agree.


PETITIONER: <NAME> & ORS. Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT31/08/1995 BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) RAMASWAMY, K. CITATION: 1996 AIR 122 1995 SCC (6) 31 JT 1995 (6) 248 1995 SCALE (5)74 ACT: HEADNOTE: JUDGMENT:

WITH CIVIL APPEAL NOS. 7820-21 OF 1995.

--------------------------------------------- [Arising out of SLP(C) Nos. 21401-02 of 1993] <NAME> & Ors.

<NAME>

<NAME> & Ors.

J U D G M E N T PARIPOORNAN, J.

Leave granted.

2. A batch of four writ petitions - <ORG> No. 8426/88, <ORG> No. 6373/88, <ORG> No. 3720/90 and <ORG> No.9000/89, was heard and disposed of by <ORG> by a common judgment dated 30.7.1993. The appellants who obtained leave in S.L.P. (C) No. 20490 of 1993, are the petitioners in <ORG> No. 8426 of 1988. The intervenors and respondents in <ORG> No. 6373/88 and the petitioners in <ORG> No. 3720/90, who have filed the civil appeals in pursuance to leave granted in S.L.P. (C) Nos. 21401-02 of 1993, are the appellants in the other appeals. No appeal is preferred by any of the parties in <ORG> No. 9000/89 against the common judgment. The State of Bihar, its officials - <ORG>, <ORG>, <ORG>, Patna, <ORG> and its officials are the respondents in these appeals.

3. The main contesting respondents in the above appeals are - the State of Bihar, <ORG>, and <ORG> <ORG> was a writ petition filed by <ORG>, praying that appropriate directions may be given to the respondents therein (the State of Bihar and its officials, <ORG>, <ORG> and <ORG>) to give effect to the directions given by <ORG> in CWJC No. 3241/82 in the judgment dated 23.5.84, and for other consequential and incidental reliefs, including directions to the respondents to remove the encroachments or unauthorized constructions from the vacant lands which formed the subject matter of the notification. The four writ petitions were disposed of by a common judgment dated 30.7.1993, by a Division Bench of <ORG> (<NAME> and <NAME>, JJ). By the aforesaid judgment the learned Judges directed the land acquisition officer to sign and complete the award in terms of the earlier order of the <ORG> dated 31.7.1984, in Form 15 and to take further steps in terms of Section 12 of the Land Acquisition Act,1894 (hereinafter referred to as the 'Act'). <ORG> was allowed to the above extent.In view of the above directions, the other writ petitions were dismissed. The learned Judges also observed that the office will start preparing separate records relating to the contempt of court matters so as to pass necessary orders, and that the authorities before whom a suit and other encroachment proceedings relating to the land under acquisition were pending, shall expedite them. Aggrieved by the aforesaid judgment, the petitioners in CWJC No. 8426/88, the respondents and intervenors in <ORG> and the petitioners in <ORG>, after obtaining special leave have filed the aforesaid appeals.

4. We heard Mr. <NAME> and Mr. <NAME>, Senior Counsel who appeared on behalf of the appellants and Mr. <NAME>, Senior Counsel, Mr. <NAME>, Advocate and Mr. <NAME>, Advocate, who appeared on behalf of the respondents. The subject matter in the appeals relates to land acquisition proceedings, covering an extent of about 32.48 acres in the villages of Rajapur No. 3 and Dujra No. 4, Perganna Phulwari, Thana Phulwari, District Patna, initiated under Section 4(1) read with Section 17(4) of the Act as amended by Bihar Act No. 18 of 1964.

5. <ORG>, a society registered under the Societies Registration Act on 4.3.1958, (hereinafter called the '<ORG>'), and its officials are the petitioners in CWJC No. 6373/88. The <ORG> requested <ORG> to acquire land for the purpose of providing it to doctors, lawyers, <ORG> servants and journalists for building purpose. An extent of 25.09 acres of land was acquired under the normal procedure and the acquisition was completed on 11.7.1862. Possession of the land was taken and compensation was also paid. There is no controversy about this part of the acquisition.

6. The <ORG> wanted to acquire another block of 32.48 acres, the land adjacent to the aforesaid 25.09 acres. The entire controversy in this batch of appeals is regarding this acquisition, initiated under Section 4 read with Section 17(4) of the Act ("emergency" acquisition). The Notification relating thereto is dated 4.2.1959. The declaration under Section 6 was made on 4.6.1969. A writ petition filed in <ORG> assailing the above proceedings was allowed with liberty to the authorities to initiate proceedings afresh on 2.4.1960. While so, <ORG> (<ORG>), (hereinafter referred to as the '<ORG>'), requested the <ORG> to acquire 64.48 acres of land in Dujra and Rajapur villages for its <ORG>, Phase-I. The extent of 32.48 acres of land which the <ORG> wanted to acquire and for which proceedings were initiated (under Section 4(1) read with Section 17(4) fell within the area, which the <ORG> wanted the <ORG> to acquire. A fresh Notification under Section 4 read with Section17(4) of the Act, proposing to acquire 64.48 acres of land was promulgated on 6.8.1961.There was an understanding that upon acquisition, out of the above land, 32.48 acres would be transferred to the <ORG>. A declaration under Section 6 of the Act dated 5.10.1961, appeared in the <ORG> on 7.10.1961. As stated, the possession of 25.08 acres acquired under the ordinary procedure was handed over to the society on 11.7.1962. It appears that possession of an area of 57.71 acres covered by the later notification, was delivered to the <ORG> on 6.8.1962. Later, the <ORG> handed over possession of 32.48 acres to the <ORG>. While so, in M.J.C. No. 65/62 <ORG> of Patna stayed the land acquisition proceedings. The stay was in force from 23.1.1962 to 1.7.1964 and the M.J.C. was finally withdrawn. It appears that the <ORG> deposited with the <ORG> a sum of Rs.1 million on 7.4.1965. By letter No.254, dated 18.1.1972 the <ORG> directed the Collector not to make the award till fill payment of compensation was deposited by the <ORG>. The acquisition was questioned in C.W.J.C. No. 812/67 in <ORG> of Patna. The said petition was dismissed. The matter was taken in appeal to this Court. The appeal was also dismissed. The decision of this Court is reported in <ORG> and others vs. The state of Bihar and others, AIR 1974 sc 1886. The <ORG> did not deposit the entire compensation amount despite reminders. While so, on 14.8.1981 the <ORG> passed a resolution not to acquire the entire lands sought, expect those portions which were required for construction of the road. It is stated that two awards were passed on 13.3.1982 for an extent of 4.47 acres and 3.32 acres only and the amount of compensation due thereunder were also paid. No award was passed in respect of the remaining lands. It is in these state of affairs, on 22.8.1982 the <ORG> filed the writ petition CWJC No. 3241/82, and assailed the resolution of the <ORG> dated 14.8.1981 and also prayed for a direction to the respondents therein to release the lands. The <ORG> of Patna by its Judgment dated 23.5.1984, quashed the resolution of the <ORG> dated14.8.1981, and also directed the District Collector to prepare the award.In the said Judgment, it was noticed that the <ORG> was given possession of lands acquired under the normal procedure - 25.08 acres, and also lands acquired under the emergent procedure - 32.48 acres. The Court further found that since possession of the land had been taken, the <ORG> cannot withdraw from the acquisition. The validity of acquisition was upheld by <ORG> which was affirmed by this Court and it was observed that the acquisition cannot be nullified, for not passing an award. The Court also noticed that there was unauthorized construction and encroachments, but since the land vested in the <ORG> and possession was taken over, no rights will acquire by such unauthorized construction and encroachments. It is seen that the special leave petition filed against the Judgment of <ORG> in CWJC No. 3240/82 was dismissed by this Court on 23.9.1984. Pursuant to the aforesaid Judgment an award dated 31.7.1984 was passed. The appellants contend that the proceeding dated 31.7.1984 is only a valuation statement and not an award. According to the respondents, the proceeding dated 31.7.1984 is in substance an award. The <ORG> filed an application before the Collector under the Bihar Public Encroachment Land Act, 1976 against 207 persons. The <ORG> also filed Title Suit No. 32/87 in <ORG>, Patna against 357 persons for restoration of possession by evicting the encroachers.

7. The above events led to the filing of CWJC No. 6373//88 by <ORG>, the <ORG> and the Land Acquisition officer to give effect to the Judgment rendered in CWJC No. 3241/82 and for other reliefs and complete the acquisition proceedings. The appellants herein filed CWJC No. 8426/88 and 3720/90, in effect contending that the entire land acquisition proceedings had lapsed in view of Section 11-A of the Act. They are also intervenors in CWJC No.6373/88. Before us, as also before <ORG>, the objections of the appellants and intervenors against the land acquisition proceeding are three-fold:

(i) The land acquisition proceeding have lapsed in view of Section 11-A of the Act.

(ii) The proceedings dated 31.7.1984 is not an award since it is not in Form 15 and is unsigned.

(iii) The <ORG> is not entitled to any relief as prayed for in CWJC No. 6373/88, since it has initiated alternate proceedings by way of title suit and application under the Bihar Public Land Encroachment Act, 1956.

8. The sheet-anchor of the appellants plea is that the land acquisition proceedings have lapsed in view of Section 11-A of the Act. In order to understand the scope of the plea it will be useful to extract the relevant provisions of the Acts. [ Section 6 , Section 11 , Section 11- A, Section 17 and Section 18(1) ].

"6. Declaration that land is required for a public purpose.-

(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report , if any, made under Section 5-A , sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4 , sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required ) under Section 5-A , sub- section (2) Provided that no9 declaration in respect of any particular land covered by a notification under Section 4 , sub- section (1),-

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act , 1984, shall be made after the expiry of three years from the date of the publication of the notification;or

(ii) published after the commencement of the Land Acquisition (Amendment) Act , 1984, shall be made after the expiry of one year from the date of the publication of the notification:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property id to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority."

"11. Enquiry and award by Collector.- (1) on the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8 , and into the value of the land at the date of the publication of the notifications under Section 4 , sub- section (1), and into the respective interests of the compensation and shall make an award under his hand of -

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land;and

(iii)the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom,or of whose claims, he has information, whether or not they have respectively appeared before him: Provided that no award shall be made by the Collector under this sub- section without the previous approval of the appropriate <ORG> or of such officer as the appropriate <ORG> may authorise in this behalf: (2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate <ORG>, he may without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.

(4) Notwithstanding anything contained in the Registration Act ,1908, , no agreement made under sub- section (2) shall be liable to registration under that Act." "11-A. Period within which an award shall be made.- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment ) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a <ORG> shall be excluded."

"17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the appropriate <ORG> si directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 , sub- section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

XXX XXX XXX (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub- section (1) or sub-section (32) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not be apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under section 4 , sub-section (1)." "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Expect in the case provided for in Section 36 , the Government shall be at liberty to withdraw from the Acquisition of any land of which possession has not been taken."

It was contended that in view of Section 11-A of the Act the entire land acquisition proceedings lapsed as no award under Section 11 had been made within 2 years from the date of commencement of the Land Acquisition Amendment Act , 1984. We are of the view that the above plea has no force. In this case, the Government had taken possession of the land in question under Section 17(1) of the Act.It is not open to the Government to withdraw from the acquisition ( Section 48 of the Act). In such a case, Section 11-A of the Act is not attracted and the acquisition proceedings would not lapse, even if it is assumed that no award was made within the period prescribed by Section 11-A of the Act. Delivering the Judgment of a Three Member Bench of this Court, in <CITATION> , 1993 (4) sc 369, s.p. Bharucha, J., at page 374, paragraph 15, stated the law thus:

"Ordinarily, the <ORG> can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under section 11 . Upon the taking of possession, the land vests in the <ORG>, that is to say, the owner of the land loses to the <ORG> the title to it.This is what section 16 states. The provisions of section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the section 6 declaration. In the ordinary case, therefore, when <ORG> fails to make an award within two years of the declaration under section 6 , the land has still not wasted in the <ORG> and its title remains with the owner, the acquisition proceedings are still pending, and by virtue of the provisions of section 11-

A, lapse. When section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is diversted of the title to the land which is vested in the <ORG>. Section 17(1) states so in unmistakable terms. Clearly, section 11- A can have no application to cases of acquisition under Section 17 , because the lands have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner."

(Emphasis supplied) We, therefore, hold that the land acquisition proceedings in the instant case did not lapse.

9. We are also of the view that the proceedings dated 31.7.1984 (appearing 82 to 84 of Paper Book, Vol.I, and at pages 203 to 206 of paper Book, Vol.II), is in substance an award as contemplated by Section 12 of the Act.It is signed by the District Land Acquisition officer (Collector) under the Act, though the signature appears to be illegible dated 31.7.1984, <ORG> observed that the State is bound by the directions given by the <ORG> earlier in CWJC No. 3142/82, that in the light of the aforesaid order of <ORG>, proceedings dated 31.71984 was passed, that all requisites of an award are mentioned in the said ordure, and since there is substantial compliance, it should be treated as an award. <ORG> was also of the view that even a defective award which has provisions with the directions of the <ORG> and the provisions of law will not invite " the wrath" of Section 11-A of the Act. We are in general agreement with the reasoning and conclusion of the high <ORG> in holding that three proceedings dated 31.7.1984, in the facts and circumstances of the case, is an award passed by the Collector under the Act, though not in Form 15. It is only a matter of procedure which should be complied with. Since the direction given by <ORG> in CWJC No. 3241/82 should not be effectuated, <ORG> was justified in directing the authority concerned to sign and complete the award in t terms of the earlier order dated 31.7.984. The reasoning of <ORG> that it has power to issue such directions under Article 215 , in a case where otherwise the conduct of the persons called for punishment in contempt, appears to be justified. We hold that the proceedings dated 31.7.1984, is in substance, an award, though it is not in Form 15.

10. Mr. <NAME>, senior counsel, very strongly contended that since the <ORG> filed an application before the Collector under the Bihar Public Land Encroachment Act, 1956, and also title suit No. 32/87, in <ORG>, Patna for removing the encroachments, <ORG> was in error in not dismissing the writ petition filed by the <ORG>. In other words, the plea was that since the <ORG> has availed of the alternate remedy, the writ petition should have been dismissed and <ORG> should not have exercised the discretionary jurisdiction under Article 226 of the Constitution of India. Counsel pressed into service the decision of this <ORG> in <CITATION> , AIR 1977 sc 898, to substantiate the plea. We are of the view that <NAME> case is clearly distinguishable. In that case, the appellant before this court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the p[articular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in <ORG> was dismissed on the ground that it fact and the appellant had an alternate remedy. Against the dismissal of the writ petition the appellant filed an appeal in this <ORG> on a certificate granted by <ORG>. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this <ORG> held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinarily situations or circumstances, which may even warrant, a different approach, where the orders passed by the <ORG> are sought to be violated or thwarted with impunity. The <ORG> cannot be silent spectator in such extra- ordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the <ORG> (CWJC No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this <ORG> in CWJC No. 3241/82, dated 23.9.1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorized constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of <ORG>. But such relief cannot be withheld or denied. In the Judgment dated 23.9.1984, rendered in CWJC No.3241/82, the <ORG> categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by <ORG> and the Supreme <ORG>, and the encroachments or the unauthorized structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the <ORG> the fact that the owner of the land entered upon the land, will not obliterate the consequences of vesting, and allowed the writ petition filed by the <ORG>, and quashed the steps taken for derequisitioning of the land requested by the <ORG> and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorized constructions, was repelled, and relying upon the decision of this <ORG> in <CITATION> , AIR 1975 SC 1767, it was held that once possession of the land was taken by the <ORG>, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have the effect of obliterating the consequences of vesting. In allowing the prayer of the <ORG> in CWJC No. 6373/88, by a common judgment dated 30.7.1993, <ORG> was only implementing its earlier order and directions in CWJC No. 3241/82 which it was bound to do in the circumstance. We hold that the directions and orders contained in CWJC No. 3241/82, which were not interfered with, by this <ORG> in special leave petition, by order dated 21.3.1984, should be fully and effectively implemented. We hold so.

11. Mr. <NAME>, senior counsel feebly raised the plea that the Government authorities did not take possession of a small portion of the land, about 7 acres; and there is no award relating thereto, and the proceedings regarding that portion of the land, had lapsed. This plea is without substance. In our view the proceedings dated 31.7.1984 is in substance an award passed in pursuance of the directions given by this Court in CWJC No. 3421/82. The entire land, for which request for acquisition was made by the <ORG>, was delivered over to the <ORG>.Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken is against the record (see AIR 1974 SC 1886 at 1889).

12. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the <ORG> that even the files relating to the acquisition of land are not traceable. The High <ORG> was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed to deliberate destruction of the relevant files by the "interested parties",and "but for the intervention of influential persons", the Government would not have stayed the entire proceedings as it did on 3.5.1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1888). A laudable and noble cause is delayed for more than 3 decades, under one pretext or the other. We express our anguish in the entire episode. We, therefore , direct the State of Bihar, its officials, the authorities and other persons concerned who are seized of the subject matter of the instant land acquisition proceedings, to complete the proceedings in the quickest possible time. We further direct the appellants in these appeals to pay costs of Rs. 10,000/- in each of these appeals, towards the Advocate's fees for the <ORG>.

13. The appeals are dismissed with costs as aforesaid.


CASE NO.: Appeal (crl.) 774 of 2002 PETITIONER: <NAME> RESPONDENT: State of Jammu & Kashmir & Another DATE OF JUDGMENT: 29/09/2006 BENCH: S.B. SINHA & <NAME> JUDGMENT:

J U D G M E N T <NAME>, J.

Speedy trial as read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution is the main issue which has arisen for adjudication in this appeal.

Brief facts necessary to dispose of this appeal are as follows.

The appellant was working as a Manager in <ORG>, Sumbal, Kashmir in the year 1980. An FIR No. 34 of 1980 under Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act (for short, 'the J & K PC Act') was registered against the appellant, pursuant to which the appellant was arrested on the allegation that he had received a sum of Rs.700/- as illegal gratification, though the amount as alleged was not recovered from him, but from one <NAME>.

On 30.4.1981 a challan under Section 173 . came to be filed against the appellant before the court of Special Judge, Anti Corruption, Srinagar, Kashmir under Section 5(2) of the J & K PC Act. The appellant challenged the legality of the proceedings of the Court before <ORG> in Criminal Petition No. 41 of 1982 on the ground that he was not a public servant within the meaning of Section 21 of the Ranbir Penal Code (for short, 'RPC'), as such, he could not be tried under the provisions of the J & K PC Act.

The appellant also urged that the <ORG> had no jurisdiction to try the case because no valid sanction had been obtained for prosecution of the appellant from the competent authority.

The Court, after hearing the parties, held that the appellant was a public servant within the meaning of Section 21 RPC being an employee of <ORG>, which was engaged in trading business besides being owned by <ORG>.

<ORG> came to a definite finding that under the service rules of <ORG>, the supervisory staff was not the General Manager (Operations). The appellant at the time of the commission of the alleged offence was a Branch Manager and he could be removed from the service by the appointing authority or by an authority which was superior to the appointing authority. That being so, the sanction given by the General Manager (Operations) for prosecution of the appellant on 26.5.1981 was given by an incompetent person who had no jurisdiction or competence to remove the appellant from the service. The sanctioning authority was not even the appellant's appointing authority. However, under Section 6 of the J & K PC Act which provides for initiation of prosecution, there must be a sanction issued by a person who was empowered to remove such an official from service.

<ORG> clearly held that it was well settled that no prosecution could be brought before a <ORG> without there being a proper sanction. Existence of a valid sanction was a condition precedent for prosecution under Section 5(2) of the J & K PC Act. In the absence of sanction, the trial Judge had no jurisdiction to take cognizance of the case. The <ORG>, while allowing the petition filed by the appellant, quashed the proceedings pending against the appellant in the trial court under Section 5(2) of the J & K PC Act and under Section 161 RPC.

The appellant, however, was dismissed from service in the departmental proceedings initiated against him, and later, in appeal, the dismissal was converted into removal from the service.

It may be pertinent to mention that the respondents again filed a challan against the appellant before <ORG>, Anti Corruption, Srinagar on 25.7.1986, on the same set of facts that the appellant was no more in service and the sanction for prosecution was not required now.

The chronic militancy in Srinagar led to mass migration of the minority community. The appellant being a member of the minority community migrated to Jammu on 23.9.1998. The appellant filed a petition before <ORG> at Jammu seeking transfer of the case from <ORG>, Srinagar to <ORG>, Jammu. <ORG> vide its order dated 23.9.1998 transferred the case. The appellant filed an application before the trial court for quashing of the trial on the plea that the appellant could not be prosecuted without sanction.

The learned Special Judge, <ORG>, Jammu after hearing the parties vide order dated 12.3.1999 accepted the application filed by the appellant and discharged him from the offences under Section 5(2) of the J & K PC Act read with Section 161 RPC. The trial court observed in its order that <ORG>, Kashmir, despite having knowledge that earlier accorded sanction had been quashed, again produced the instant charge-sheet for his trial in the year 1986 on the plea that the accused had been removed from the service, as such, no sanction as contemplated under Section 6 of the J & K PC Act was required.

The Special Judge after hearing the parties observed that it was not disputed that earlier sanction accorded to prosecute the accused was quashed by <ORG> having not been accorded by a competent authority. Even now, no fresh sanction had been obtained to prosecute the appellant from the competent authority. When the instant charge-sheet was presented, no sanction was in existence. The learned trial Judge interpreted Section 6 of the J & K PC Act and stated that, according to the said Section, sanction was sine qua non for taking cognizance of the offence. We deem it appropriate to reproduce Section 6 of the Act. It reads as follows:

"6. Previous sanction necessary for prosecution  (1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Ranbir Penal Code, or under sub-section (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction ___

(a) in the case of a person who is not removable from his office save by or with the sanction of the Government,

(b) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Government or any other authority, such sanction shall be given by the Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."

The Court clearly observed that it was immaterial whether at the time of the presentation of the charge- sheet the accused was in service or not, but the fact was that he had committed criminal mis-conduct while discharging his official functions and the cognizance taken against the appellant without sanction was bad in the eyes of law. The accord of sanction was a sine qua non for taking cognizance of the offence against the accused.

It was submitted by the appellant that the order dated 12.3.1999 passed by the Special Judge, Anti Corruption, Jammu was not challenged and, therefore, it became final and binding between the parties.

It was further submitted that it was astonishing that without challenging the validity of the order passed by the Special Judge, Jammu a challan was filed against the appellant on the same set of facts before the Special Judge, Anti Corruption, Jammu on 12.8.2000, by the respondent. By virtue of order dated 12.8.2000 the appellant again came under judicial restraint and was asked to produce sureties for his presence in the Court.

The appellant filed a petition before <ORG> for quashing the proceedings pending before the Special Judge, Anti Corruption, Jammu, being Case No. 34 of 1980. <ORG> vide impugned judgment dismissed the petition without appreciating the contentions raised by the appellant in proper perspective. The appellant has now challenged the impugned order of <ORG> dated 5.9.2001. The appellant submitted that the orders of discharge by <ORG> in the first instance and subsequently by the Special Judge, Anti Corruption, Jammu had become final and binding because the respondents did not challenge the said orders. It is also alleged that the respondents could not be permitted to prosecute the appellant on the same cause of action and on the same facts and circumstances for the third time. According to the appellant, this was a clear case of gross abuse of the process of law. He further submitted that how the respondents could be permitted to file a fresh challan for the third time on the same cause of action and on the same facts and circumstances? According to the appellant, the impugned order suffers from serious infirmities. He submitted that <ORG> ought to have appreciated that by dismissing the appellant's petition <ORG> had in fact reviewed its own order. There was no provision in the Criminal Law which enabled the <ORG> to review its own order.

The appellant further submitted that repeated filing of challans by the respondents without any sanction had caused immense mental, physical and emotional stress and harassment for more than 26 years. The appellant also sought relief on the ground that it was the right of every citizen to seek speedy trial. Continuation of further proceedings against the appellant is contrary to the basic spirit of Article 21 of the Constitution, and consequently, the impugned judgment is liable to be set aside.

In the special leave petition preferred by the appellant, this Court issued a show-cause-notice. Pursuant to that show-cause-notice, a counter affidavit was filed on behalf of the respondents by the Director General/Commissioner of <ORG>. It may be pertinent to mention that the basic facts incorporated in the special leave petition regarding the three challans produced by the respondents have not been denied. Admittedly, in the last more than 26 years, not even a single witness has been examined by the prosecution. The appellant, of course, had taken the legal remedy available to him to protect his interests against illegal proceedings initiated against him by the respondents, but that by itself could not be a ground to harass and humiliate the appellant for more than a quarter century.

It was submitted that the appellant could not have been prosecuted without a valid sanction. The respondents were not justified in filing the fresh challan without getting the earlier order of <ORG> and the order of the Special Judge, Anti Corruption, Jammu quashed. It was urged that the proceedings initiated against the appellant were totally without jurisdiction and consequently were liable to be set aside.

The appellant, in the instant case, has been facing the criminal prosecution for almost more than two and a half decades. The speedy trial is an integral part of Article 21 of the Constitution. In the instant case, in the last twenty six years, not even a single prosecution witness had been examined. It was urged that for more than one reasons, the prosecution, in the instant case, cannot be permitted to continue. The proceedings taken by the respondents against the appellant were clearly an abuse of process of law.

This Court had repeatedly emphasized that the speedy trial is implicit in the spectrum of Article 21 of the Constitution.

Reference was made to a Constitution Bench Judgment of this Court in the case of <CITATION> . In this case, the Court held that the right to a speedy trial was a part of fair, just and reasonable procedure implicit in Article 21 of the Constitution. This Court, in this case, observed that each case had to be decided on its own facts. In this case, this Court further observed that it was not advisable and feasible to fix an outer time limit for conclusion of the criminal proceedings.

It was submitted in the said case that the framers of Indian Constitution were aware of the 6th Amendment in the Constitution of the USA providing in express terms the right of an 'accused' to be tried speedily. Yet, similar provision was not incorporated in the Indian Constitution. It was submitted in that case that it is neither permissible nor possible nor desirable to lay down an outer limit of time. <ORG> also had refused to do so.

We deem it appropriate to reproduce the relevant observations made by this Court in the case of <CITATION>  as under:

"We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in <CITATION> []. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21."

In a number of cases, this <ORG> on consideration of peculiar facts and circumstance of individual cases had quashed the proceedings.

<CITATION> through C.B.I. (1986) Supp. SCC 505, this Court quashed the proceedings on the ground that any further continuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in <ORG> of the Bank is uncalled for, particularly, in view of the complicated nature of the offence charged.

This <ORG>, in the case of <CITATION>  quashed the proceedings on the ground of delay in investigation and commencement of trial. The investigation commenced in November 1976 and the case was registered on completion of the investigation in September 1977. Cognizance was taken by the <ORG> in March 1986.

<CITATION> . (1988) Supp. SCC 458, this Court quashed the charges against the accused under Section 5 of the Import and Exports (Control) Act, 1947. The Court held that it would not be in the interests of justice to allow a prosecution to start and trial to be proceeded with after a lapse of twenty six years even though one of the accused was himself responsible for most of the delays caused by his mala fide tactics.

<CITATION> (1955) 2 SCR 524, this Court observed that while it was incumbent on the Court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The Court observed that the scales must be held even between the prosecution and the accused. In the facts of that case, the Court refused to order trial on account of the time already spent and other relevant circumstances of that case.

In the case of <NAME> (supra), this Court gave propositions meant to serve as guidelines. This Court held that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. This Court further observed as under:

"(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-

conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

xxx xxxx xxxx xxx xxxx xxxx"

This Court also observed that while determining whether undue delay has in fact occurred, one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on  what is called, the systematic delays. The sum and substance is that it is neither advisable nor practicable to fix any time limit for trial of offence. Each case has to be decided on its own facts and circumstances.

This <ORG>, as per the majority in a seven-Judge Bench, in the case of <CITATION>  came to the conclusion and declared that this <ORG> can interpret the law and in the process remove any lacuna, fill the gaps in the Legislation and even lay down a law with reference to the dispute before it. But it, cannot declare a new law of general application in the manner the <ORG> does. In this case, the <ORG> relied upon <NAME>'s case (supra) and refrained from fixing any time limit not because the <ORG> had no power to do so, but because it was "neither advisable nor practicable" to do so. The <ORG> observed that since the law laid down by <ORG> still holds the field, any declaration made in derogation thereof fixing time limit by a smaller Bench is overruled by virtue of the doctrine of binding precedents. The <ORG> also laid down that the question of delay had to be decided by the <ORG> having regard to the totality of circumstances of an individual case. The <ORG> observed that it must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21 , and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted.

It would be pertinent to mention that the Sixth Amendment to the U.S. Constitution states that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. "These guarantees are the most basic rights preserved by the Constitution; fundamental liberties embodied in the Bill of Rights. The due process clause of the Fourteenth Amendment made them applicable to all States."

The Constitutional guarantee is for the protection of both the accused and the society. Even in the United States where there has been a constitutional amendment recognizing speedy trial as an extremely valuable right of the accused even then the <ORG> held that no time limit could be fixed for concluding the criminal trial. It has been held that it depends on the facts and circumstances of each case.

In a celebrated American case, <NAME> v. <NAME> (1905) 198 US 77, 49 L Ed 950, 25 S Ct 573, it was recognized that the right to a speedy trial is necessarily relative, and that it is consistent with delays and depends upon circumstances.

In another case of <ORG>, <NAME> v. <ORG> 1957) 352 US 354, 1 L Ed 2d 393, 77 S Ct 481, it was recognized that whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon the circumstances, and that the delays must not be purposeful or oppressive.

It was recognized that "the constitutional guarantee of a speedy trial is an important safeguard (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delays will impair the ability of an accused to defend himself. Adhering to the views expressed in earlier decisions, the <ORG> reiterated that the right to a speedy trial is necessarily relative; that it is consistent with delays; that whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon the circumstances and that the delay must not be purposeful or oppressive."

In <NAME> v. <NAME> (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575, it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.

In England, from the time of the Magna Carta, an accused, in theory at least, enjoyed the right to a speedy trial, which was secured by the commission of goal delivery, under which the jails were cleared at least twice each year.

In <ORG> v. <NAME> [337 Mass 384, 149 NE2d 608, 66 ALR2d 222, cert den 358 US 850, 3 L ed 2d 85, 79 S Ct 79], the guarantee of speedy trial has been held to serve a threefold purpose: it protects the accused, if held in jail to await trial against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, like statutes of limitation, it prevents him from being exposed to the hazards of a trial after the lapse of so great a time that the means of proving his innocence may have been lost.

In the case of <ORG> v. <NAME> [41 Ariz 170, 16 P2d 965], it has been held that an accused who has been denied speedy trial, or who has not been brought to trial within the time required by an implementing statute, can generally move to dismiss the prosecution on that ground.

Rule 48(b) of the Federal Rules of Criminal Prosecution authorizes dismissal if there is unnecessary delay in presenting the charge to a grand jury or in filing an information against an accused who has been held to answer to the district court, or if there is unnecessary delay in bringing an accused to trial. This rule has the same effect in implementing the Sixth Amendment right to speedy trial, as an act of <ORG> would have had.

A Constitution Bench of this Court has, in the case of <CITATION> , mentioned that the right to a speedy trial is a derivation from a provision of Magna Carta. This principle has also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of United States of America which reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...". It may be pointed out, in this connection, that there is a Federal Act of 1974 called 'Speedy Trial Act' establishing a set of time- limits for carrying out the major events, e.g., information, indictment, arraignment, in the prosecution of criminal cases.

In this case, this Court further observed as under: "The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge."

The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.

This Court in <NAME> (I) (supra) further observed as under:

"No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."

This <ORG> in a number of cases has reiterated that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure 'reasonable, just and fair' procedure which has a creative connotation after the decision of this <ORG> in <NAME> case (supra).

When we examine the instant case in the light of the aforementioned decisions of this <ORG> and of the US Supreme <ORG>, it becomes abundantly clear that no general guideline can be fixed by the court and that each case has to be examined on its own facts and circumstances.

It is the bounden duty of the court and the prosecution to prevent unreasonable delay.

The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.

In order to make the administration of criminal justice effective, vibrant and meaningful, <ORG>, the State Governments and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.

In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the <ORG> to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of.


PETITIONER: M/s. ANWARKHAN MAHBOOB CO. Vs. RESPONDENT: THE STATE OF BOMBAY (NOW MAHARASHTRA) AND OTHERS DATE OF JUDGMENT: 20/09/1960 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, S.K. HIDAYATULLAH, M. SHAH, J.C. AYYANGAR, N. RAJAGOPALA CITATION: 1961 AIR 213 1961 SCR (1) 709 CITATOR INFO : R 1962 SC 562 (8) RF 1963 SC 906 (20) RF 1977 SC 879 (27) R 1979 SC1721 (7) RF 1980 SC1227 (6) R 1986 SC1085 (9) R 1987 SC1885 (8) ACT: Purchase Tax--If leviable on goods not specifically mentioned as taxable but come under the general description "all goods other than those specified "-Conversion of one commodity into another commerciallydifferent article-If amounts to consumption-Place of purchasefor the purpose of taxation-Constitution of India, Art. 19 (f)  & (g)286- Bombay Sales Tax Act, 1953 (Bom. Act III of 1953), s. 10, Schedule B, Entry 80. HEADNOTE: The petitioner Company carrying on the business of manu- facturing bidis and having its head office at Jabalpur in the State of Madhya Pradesh made certain purchases of tobacco in the State of Bombay. The Sales Tax Officer assessed the petitioner to a purchase tax under the provisions of the Bombay Sales Tax Act, 1953. The petitioner contested the assessment of 710 purchase tax on the grounds that those transactions and pur- chases were " Outside the State of Bombay " within the meaning of Art. 286(1)(a) of the Constitution read with the Explanation, that the provisions of the Bombay Sales Tax Act, 1953, did not authorise the imposition, levy or collection of any purchase tax on the transactions in question and that the transactions took place in the course of inter State trade and commerce. The petitioner's appeal to the Assistant Collector of Sales Tax was dismissed and then the present petition for writs of mandamus and certiorari was filed in <ORG>. The petitioner contended that the Bombay Sales Tax Act, 1953, did not authorise the imposition of a tax on the purchase of bidi- tobacco which was not one of the goods specified in column 4 of Schedule B of the said Act. The petitioner further contended that the purchased tobacco was delivered to it within the State of Bombay as a direct result of the purchase but it was intended to be sent to the State of Madhya Pradesh to be manufactured into bidis at that place. The only thing which was done in the Bombay State was to remove the stem and dust from the tobacco which process did neither amount to " consumption " of tobacco as contemplated under the Explanation to Art. 286 of the Constitution nor did it convert the tobacco which was sent to <ORG> into an article " commercially different " from the tobacco purchased from the cultivators. In their counter affidavit the respondents averred that the raw tobacco was converted into bidi pattis before it was sent outside Bombay State both of which were commercially different articles and the market value of which was also different. These averments were not controverted by the petitioner. Held, that the words " all goods other than those specified from time to time in Schedule A and in the preceding entries " in entry 8o of Schedule B of the Bombay Sales Tax Act, 1953, amounted to a specification of goods for the purposes of s. lo of the Act and as bidi tobacco purchased by the petitioner was not within Schedule A or any of the earlier entries in Schedule B purchase tax at the rate mentioned against entry 8o was leviable under s. 1o of the Act. Whenever a commodity was so dealt with as to change it into another commercial commodity there was consumption of the first commodity within the meaning of the Explanation to Art. 286 of the Constitution. <CITATION> ,  S.C.R. 53, followed. The delivery of tobacco in Bombay State for changing it into bidi patti which is a commercially different article amount- ed to delivery for the purpose of consumption and the purchase fell within the meaning of Art. 286(i)(a) of the Constitution and took place inside tile Bombay State. 711 JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 125 of 1959. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights.

<NAME>, <NAME> and <NAME>, for the Petitioners.

<NAME> and <NAME>, for the Respondents. 1960. September 20. The Judgment of the Court was delivered by <NAME> this petition under Art. 32 of the Constitution the petitioner, a partnership firm carrying on the business of manufacture of bidis and having its head office at Jabalpur within the State of Madhya Pradesh complain that its fundamental rights under Art. 19(1)(f) and

(g) of the Constitution have been violated by the illegal imposition of a purchase tax on certain purchases of tobacco made by it in the State of Bombay. It appears that the Sales Tax Officer, Baroda, made an order assessing the petitioner to a purchase tax under s. 14, sub-s. (6), of the Bombay Sales Tax Act, 1953 (Bom. Act III of 1953) for the period April 1, 1954 to September 29, 1955. The petitioner contends that this assessment was illegal inasmuch as these transactions are purchases " outside the State of Bombay " within the meaning of Art. 286(1)(a) of the Constitution read with the Explanation and also because these transactions took place in the course of inter-State trade and commerce within the meaning of Art. 286(2) of the Cons- titution. It was also urged that the provisions of the Bombay Sales Tax Act, 1953, do not authorise the imposition, levy or collection of any purchase tax on the transactions in question.

In appears that against this assessment order made by the Sales Tax Officer on October 18, 1955, the petitioner preferred an appeal to the Assistant Collector of Sales Tax. This officer set aside the order of the Sales Tax Officer imposing a penalty under s. 16(4) but dismissed the appeal against the order of assessment to tax. The order in appeal was made on  November 26, 1957. The present petition was. filed on August 4, 1958, praying for a writ in the nature of mandamus or any other appropriate direction or order against the respondents-The <ORG>, The Collector of Sales Tax, <ORG> The Sales Tax Officer, Baroda and the Assistant Collector of Sales Tax, <ORG>, Range III, Baroda-

preventing them from enforcing the provisions of the Bombay Sales Tax Act against the petitioner on the transactions in question, for a writ in the nature of certiorari for quashing the proceedings taken against the petitioner and the orders of assessment made by the Sales Tax Officer and the order in appeal by the Assistant Collector of Sales Tax and for a declaration that the Act does not authorise the imposition, levy or collection of tax on the transactions in question.

It will be convenient to consider first the petitioner's contention that the Bombay Sales Tax Act, 1953, does not authorise the imposition of a tax on the purchase of bidi- tobacco. The relevant portion of s. 10(1) which provides for the levy of a purchase tax is in these words :- "there shall be levied a purchase tax on the turnover of purchase of goods specified in column 1 of Schedule B at the rates, if any specified against such goods in column 4 of the said schedule......."

The petitioner's contention is that bidi-tobacco which was purchased by it is not one of the goods specified in Column 4 of the said schedule. Turing to Schedule B we find there are 80 entries in the first column. Against each of these entries the second column of the schedule mentions the rates of sales tax leviable under s. 8 of the Act: the third column mentions the rate of general sales tax leviable under s. 9, while the fourth column which is the last, column men- tions the rate of purchase tax. While the entries from 1 to 79 mention specific articles, entry 80 as it stood before its amendment in 1957 was in these words:-" All goods other than those specified from time to time in Schedule A and in the preceding entries." (An amendment by the Bombay Act, 71 of 1958, added the words " and sec. 7A " after the words " Schedule A "). The question is whether these words "all goods other than those specified from time to time in Schedule-A and in the preceding entries " amount to a specification of goods for the purpose of s. 10. On behalf of the petitioner Mr. <NAME> contends that only the mention of specific goods can amount to specification and mention of goods in such general language as " all goods other than those specified from time to time in Schedule A and in the preceding entries " cannot be said to be a specification of goods. We are unable to accept this argument. While it is true that mention of specific goods is specification for the purpose of s. 10 as also for the purpose of ss. 8 and 9 of the Act, we see no reason to think that mention of goods in a general way as " all goods other than those specified from time to time in Schedule A and in the preceding entries " of Schedule B itself is not a specification. We are of opinion that the entry 80 in Schedule B is a specification of goods within the meaning of s. 10 and as bidi-tobacco which the petitioner purchased is not within either Schedule A or any of the earlier entries in Schedule B, purchase tax under S. 10 is leviable on these purchases, at the rate mentioned against Entry 80.

This brings us to the petitioner's main contention that the purchases took place outside the State of Bombay. The contention as stated in para. 11 of the petition is that the purchases would be. deemed to have taken place in the State of Madhya Pradesh, where the tobacco was delivered for consumption. At the hearing, however, it was not disputed that the tobacco was delivered to the Company's <ORG> within the State of Bombay which made the purchase. The despatch by the <ORG> to the company's head office at Jabalpur is not a delivery as a direct result of the sale.

It has been urged however that even though there was delivery in Bombay State, that delivery was not for the purpose of consumption within Bombay State; and so, the Explanation to Art. 286 (1)(a) does not come into operation.

The sales tax authorities have proceeded on the basis that as a direct result of the purchase goods were delivered in the State of Bombay for the purpose of consumption in the State of Bombay. Unless that view is shown to be wrong, the purchase must be held to have taken place within the State of Bombay and it will be unnecessary to consider the larger question whether even if the Explanation be not applicable, Bombay State is entitled to tax.

The definite case of the petitioner is that the purchased tobacco is delivered to it within the State of Bombay as a direct result of the purchase. The further question that has been raised is whether such delivery was for the purpose of consumption in the State of Bombay. On behalf of the petitioner it was contended that after its delivery, the tobacco was intended to be sent to the State of Madhya Pradesh to be manufactured into bidis at that place. All that used to be done to the purchased tobacco in the State of Bombay was to have the stems and dust removed from the tobacco. Such removal of the waste material, like stems and earth, it is urged, does not amount to consumption of tobacco. It is further stated that the tobacco which is despatched to the head office after removal of the waste material is not an article Cc commercially different " from the tobacco purchased from the cultivators. In the respondents' counter affidavit it is stated that " the petitioners after purchasing raw tobacco from the cultivators in the State of Bombay, subject the raw tobacco so purchased to process leading to its conversion into bidi pattis for immediate use in the manufacture of bidis............... that marketable value of raw tobacco and bidi pattis differs and that both these are commercially different articles............... There was no further affidavit filed on behalf of the petitioner to traverse the averments of the respondents that the raw tobacco is con- verted into bidi patti before it is despatched outside Bombay State and that the market value of raw tobacco and bidi patti differs. Mr. <NAME> also con. ceded at the hearing the correctness of the statement that anybody could go to the market to purchase the article known as raw tobacco or Akho Bhuko and that he could also go and purchase from the market the article known as " bidi Patti ". That itself is sufficient- proof that raw tobacco and bidi Patti are distinct and different commercial articles.

It is in the background of these facts that we have to consider the question whether tobacco was delivered in the State of Bombay for consumption in that State. In answering that question it is unnecessary and indeed inexpedient to attempt an exhaustive definition of the word " consumption " as used in the explanation to Art. 286 of the Constitution. The act, of consumption with which people are most familiar occurs when they eat, or drink or smoke. Thus, we speak of people consuming bread, or fish or meat or vegetables, when they eat these articles of food; we speak of people Consuming tea or coffee or water or wine, when they drink these articles; we speak of people consuming cigars or cigarettes or bidis, when they smoke these. The production of wealth, as economists put it, consists in the creation of " utilities ". Consumption consists in the act of taking such advantage of the commodities and services produced as constitutes the " utilization " thereof. For each commo- dity, there is ordinarily what is generally considered to be the final act of consumption. For some commodities, there may be even more than one kind of final consumption. Thus grapes may be " finally consumed " by eating them as fruits; they may also be consumed by drinking the wine prepared from " grapes ". Again, the final act of consumption may in some cases be spread over a considerable period of time. Books, articles of furniture, paintings may be mentioned as examples. It may even happen in such cases, that after one consumer has performed part of the final act of consumption, another portion of' the final act of consumption may be performed by his heir or successor-in-interest, a transferee, or even one who has obtained possession by wrongful means. But the fact that there is for each commodity what may be Considered ordinarily to be the final act of consumption, should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption. Thus, the final act of consumption of cotton may be considered to be the use as wearing apparel of the cloth produced from it. But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There 'is first the act of ginning ; ginned cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being con- sumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed in weaving; of woven cloth being consumed in the making of wearing apparel. The final product-the wearing apparel-is ultimately consumed by men, women and children in using it a; dress. In the absence of any words to limit the connotation of the word " consumption " to the final act of Consumption, it will be proper to think that the Constitution-makers used the word to connote any kind of user which is ordinarily spoken of as consumption of the particular commodity. Reverting to the instance of cotton, mentioned above, it will be proper to hold that when raw cotton is delivered in State A for being ginned in that State., it is delivered for consumption in State A ; when ginned cotton is delivered in State B for being spun into yarn, it is delivered for consumption in State B ; when yarn is delivered in <ORG> for being woven into cloth in that State, it is delivered for consumption in <ORG>; when woven cloth is delivered in State D for being made by tailor in that State into wearing apparel, there is delivery of cloth for consumption in State D; and finally when, wearing apparel is delivered in State E for being sold as dress in that State, it is delivery of wearing apparel for con- sumption in State E. Except at the final stage of consumption which consists in using the finished commodity as an article of clothing, there will be noticed at each stage of production the bringing into existence of a commercial commodity different from what was received by the producers. This conversion of a commodity into a different commercial commodity by subjecting it to some processing, is consumption with. in the meaning of the Explanation to Art. 286 no less than the final act of user when no distinct commodity is being brought into existence but what was brought into existence is being used up. At one stage of the argument what Mr. <NAME> appeared to insist was that there must be destruction of the substance of the thing before the thing can be said to be consumed. That takes us nowhere, because we have still to find out what is meant by destruction of the substance. It may well be said that when a commodity is converted into a commercially different commodity its former identity is destroyed and so there is destruction of the substance, to satisfy the test suggested by the learned counsel. We think it unnecessary however to enter into a discussion of what amounts to " destruction " as even without deciding, whether there was destruction or not, we think it proper and reasonable to say that whenever a commodity is so dealt with as to change it into another commercial commodity there is consumption of the first commodity within the meaning of the Explanation to Art. 286. This aspect of consumption was pointed out by <NAME>, J. (as he then was), in <CITATION> (1) at p. 113 of the Report. The purchase there was of raw cashew nuts. Discussing the question whether the delivery of these nuts in Travancore was for the purpose of consumption in that State, <NAME>, J., observed:---

" The raw cashew-nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew-nut kernels, are obtained. It follows, (1) [1954) S.C.R. 53.

therefore, that the raw cashew-nut is consumed by the respondents in the sense I have mentioned". <NAME>, J., here proceeded on the view that using a commodity so as to turn it into a different commercial article amounts to consumption, within the meaning of the Explanation to Art. 286(1) (a)- a view which he had earlier indicated at p. 110 of the Report. We are not aware of any case where such use of a commodity has been held not to amount to consumption.

It must therefore be held on the facts of this case that when tobacco was delivered in the-State of Bombay for the purpose of changing it into a commercially different article, viz., bidi patti the delivery was for the purpose of consumption. The purchases in this case therefore fall within the meaning of Explanation to Art. 286(1)(a) and must be held to have taken place inside the State of Bombay. There remains for consideration the objection that the transactions took place in the course of inter-State trade or commerce within the. meaning of Art. 286(2) of the Constitution and the levy of tax was therefore prohibited by the provisions thereof. Even if these transactions were in the course of inter-State trade, the bar of Art. 286(2) of the Constitution stands removed by the Sales Tax Laws Validation Act , for the entire period upto September 6, 1955. The levy of tax for the period September 7, 1955, to September 29, 1955, would be illegal if these transactions are in the course of inter-State trade. The petitioner's counsel however informed us that he did not want a decision on his question and would not, in this case, press his objection under Art. 286(2). It is unnecessary for us therefore to decide whether the transactions in question took place in the course of interState trade-or commerce within the meaning of Art. 286(2) of the Constitution. As the petitioner has failed to establish any, violation of its fundamental right, the petition is dismissed with costs.

Petition dismissed.

<NAME>