PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & CO. AND ORS. DATE OF JUDGMENT06/02/1979 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J) CITATION: 1979 AIR 1669 1979 SCC (3) 106 CITATOR INFO : RF 1987 SC1713 (10) ACT: Transfer of Property Act , 1882 (Act IV) Sections 105 , 108 read with <CITATION> of the General Clauses Act-" Immovable Property" definition of, explained. Mines Act , 1952, s. 2(i) read with Cl. (c) and (d) of s. 3 of the Mines a Minerals (Regulation and Development) Act , (No.67 of 1957), Scope of. West Bengal Estates Acquisition Act, 1953, Section 6(1)(i) , 27 and 28 , scope of. Words and Phrases "Any" "directly worked by him" in s. 28 of the West Bengal Estates Acquisition Act, 1953, meaning of-Interpretation of a document-Regard must be had to the substance and not the words or the form. HEADNOTE: The appellant idol, a juristic person, was exercising the rights, through the <NAME>, <NAME>, of a Darpatnidar in the land in suit. By a lease-deed (Ex. A), dated July 10, 1941, the appellant granted to the respondents a lease of the suit land for the purpose of raising and taking sand out of the land for a period of nine years ending on July 13, 1949. Subsequently, on April 27, 1950, the appellant made a similar grant (Ex. I) for another nine years expiring on April 13, 1959, but this grant was called "licence". The respondents did not pay the licence fee for the period 1362 (14-4-1955) to 1365 B.S. The appellant thereupon issued notice dated March 31, 1966, terminating the 'licence' and then filed a suit No. 37 of 1960 for ejectment of the respondent in <ORG>, Chandernagore. The trial court having dismissed the suit, the appellant filed a first appeal which was allowed. In second appeal the High Court restored the decree of the trial court. In appeal by special leave to this Court, it was contended on behalf of the appellant: (a) The transaction evidenced by the document (Ex. I) dated April 277 1950 was a 'license' for taking away sand and not a 'lease' of immovable property. Therefore, the appellant-intermediary will be considered to be in Khas possession of the holding on the date of vesting (April 1, 1955) through the licensee and as such. entitled to retain it under Section 6 of the Bengal Estates Acquisition Act. 1953; (b) Section 28 of the Bengal Estates Acquisition Act, 1953 is not applicable because there was no 'mine' in the suit land, as defined in the Central Act 67 of 1957; the sand deposits naturally exist on the surface and not below it and mere collection and removal of the sand from the surface did not constitute mining operations. therefore, it could not be said that the suit land was comprised in a mine or appertained to a mine within the meaning of the said Section 28 ; (c) Even if the land was a 'mine' or appertained to a mine, the mine was being worked by the appellant through a licensee, and as such, was being 19 'directly worked' by the appellant-intermediary within the contemplation of Section 28 of the Bengal Estates Acquisition Act, and therefore, the land would be deemed to have been leased to the appellant by the Government. Rejecting these contentions, and dismissing the appeal, ^ HELD: A. In ascertaining whether a document evidences a 'lease' or a 'licence', regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed. [26F] . The document (Ex. I the Agreement), in the instant case reveals the following characteristics. which show that in fact and substance, it is a 'lease" and not a 'licence': [27E, 32C] (i) A right to "raise' and "take out" and remove sand "lying inside" the land in dispute was granted by the plaintiff to the defendant. The words "raise" and "take out sand" from "inside" the land are wide enough to include not only the "right to carry out all the operations" necessary for extracting sand, but also to take it away and appropriate it. Construed in the context of the document as a whole, these words put it beyond doubt that right to carry out "mining operations" [within the definition in Cl. (d) of s. 3 of the Central Act 67 of 1957] for winning sand and to appropriate it, were granted. [27F-G] (ii) The rights were granted for a period of 9 years, commencing from April 27. 1950. [27H] (iii) These rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted. The "price" fixed is Rs. 66/- per annum. This consideration is payable in the month of Chaitra every year. In case of default, <ORG> (grantee) shall not be entitled "to raise the sand next year" and <ORG> (grantor) shall have a right to recover the arrears of rent together, with interest at 12% by bringing a suit against <ORG>. [28A-B] (iv) "<ORG> will be entitled to take Khas possession of land" "at the end of the stipulated period. This condition, (contained in paragraph 4 of Ex. 1) read along with the other parts of the document necessarily implies that if <ORG> continues to pay the "price", as stipulated, (a) he shall be entitled to enter into and remain in exclusive khas possession of the land for the purpose of carrying out the mining operations for the full stipulated period of 9 years and (b) <ORG> (plaintiff) will not be entitled to retake khas possession of the land and revoke the so-called "licence" before the end of the said period of 9 years. [28B-D] The term "lease" occurring in the definition of "mining lease" given in cl. (c) of s. 3 of the Mines and Minerals (Regulation and Development) Act is not used in the narrow technical sense in which it is defined in s. 105 of the Transfer of Property Act. A mining lease may not meticulously and strictly satisfy in all cases, all the characteristics of a "lease" as defined in the Transfer of Property Act . Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country. [29E-G] In the instant case the transaction evidenced by Ex. I not only falls within the definition of a mining lease under Act, 67 of 1957, but also partakes of 20 all the essential characteristics of a "lease" defined in s. 105 of the Transfer of Property Act. [30-A-B] Balakrishna Pal v. <NAME>, ILR 59 Cal. 1314; approved <CITATION> 44 I.A. 246; Gowan v. <NAME>,  LR 2 HL (SC) 278; differed. The negative definition of "immovable property" given in s. 3 , Para 1 of the Transfer of Property Act , 1882, is not exhaustive. Therefore, applying the definition given in s. 3(26) of the General Clauses Act (X of 1897) to the expression used in the Transfer of Property Act , except as modified by the definition in the first clause of s. 3 every interest in immovable property or a benefit arising out of land, will be 'immovable property' for the purpose of s. 105 , Transfer of Property Act . [30E-G] A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of s. 105 , more so, when it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in s. 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject matter of the lease is mineral land or a sand-mine, it can be enjoyed and occupied by the lessee by working it as indicated in s. 108 of the Transfer of Property Act which regulates the rights and liabilities, of lessors and lessees of immovable property, [30G-H, 31A] <NAME> v. <ORG>,  LR 58 IA 29; applied. <CITATION> ,  ILR 59 Cal. 699; LR 58 IA 392. differed from. Commissioner of Income Tax, Bihar and Orissa v. <NAME>, ILR (XX) Patna 13; approved. The true character of the transaction evidenced by the document (Ex. 1) being that of a 'lease' and not a 'licence,' Section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953 will not cover the appellant's case and give him a right to retain the land in dispute, even if section 28 of that Act was out of the way. [32C-D.] B. The definition of "mining operations" and "mine", in the Central Act 67 of 1957 are very wide. The expression "winning of mineral" in the definition of "mining operations is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth, irrespective of whether such activity is carried out on the surface or in the bowels of the earth. Mines and minerals need not always be sub-soil and there can be minerals on the surface of the earth. [24G] B. Dass v. <ORG> of U.P.  3 S.C.R. 869, reiterated. It is true that in the definition of "mine", the term "excavation" in the ordinary dictionary sense means "hole", "hollow" or "cavity made by digging out". But the word "any" prefixed to "excavation" in the context of the phrase "for the purpose of searching for or obtaining mineral" gives it a 21 much more extensive connotation, so that every "excavation", be it in the shape of an open cast cavity or a sub-terranean tunnelling, will fall within the definition of 'mining operations'. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of the earth. [24H, 25A-B] In tho instant case, the land in dispute has large deposits of sand, which is a minor mineral. The sand was admittedly being excavated and removed by the respondent lessee. The land was, thus, at the date of vesting, "com- prised in or appertained to a 'mine' within the meaning of s. 28 of the West Bengal Estates Acquisition Act, 1953. [25B-C] C. The phrase "being directly worked by him" in s. 28 of the West Bengal Estates Acquisition Act, 1953, will not take in a case where the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent, royalty or a like amount. [25E-F] The word "directly" means "in a direct way, without a person or thing coming between", immediately as directly responsible. The use of the expression "directly" in the context of the word "worked", followed by the words "by him" unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine, as lessees under the <ORG>, who immediately before the date of vesting, were working the mine under their immediate control, management and supervision. [25C-E] Section 28 of the West Bengal Estates Acquisition Act, 1953 denies the right to retain the land comprised in a mine or appertaining to a mine, if, at the material date, it was not being directly worked by the intermediary but through a licensee, or other agency to whom the right to conduct mining operations had been granted by the intermediary. In that respect, the provisions of s.28 are contrary to those of s. 6(1)(i) , which give to an intermediary a right to retain land held by him in khas for the purpose mentioned therein through a licensee. In this situation, according to the legislative mandate in s. 27 , the provisions of s. 6(1) (i) must yield to those in s. 28 . [26 B-C] Thus, even on the assumption that the respondent was at the material date, holding the land in Khas through a licensee and fulfilling all other conditions which entitled him to retain under section 6 (1) (i), then also, the case being in conflict with section 28 , the latter section would prevail over the former. [26D & 32E] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2218 of 1969.

Appeal by Special Leave from the Judgment and Decree dated 14-3-1969 of <ORG> in appeal from Appellate Decree No 718 of 1962.

<NAME> and <NAME> for the Appellant. <NAME>, <NAME> and <NAME>, for the Respondents.

The Judgment of tho Court was delivered by <NAME>, J.-This appeal by special leave is directed against a judgment, dated March 14, 1969, of <ORG> at Calcutta.

The appellant had the interest of a Darpatnidar in the land in suit, measuring 9 acres (27 bighas). The plaintiff by a lease-deed (Ex.A) dated July 10, 1941, granted to the defendant-respondents a lease of this land for the purpose of raising and taking sand out of the land for a period of 9 years ending on July 13, 1949. In this lease deed, the property was described to be Patni Mahal. Under the terms of this lease, the lessee had an option of renewal for another 9 years. Subsequently on April 27, 1950, appellant made a similar grant (Ex.I) for another 9 years expiring on April 13, 1959 but this grant was called a "licence".

The respondents did not pay the licence fee for the period from 1362 (14-4-1955) to 1365 B.S. The plaintiffs thereupon issued notice, dated March 31, 1966, terminating the licence and then filed Suit No. 37 of 1960 for ejectment of the respondent in <ORG>, <ORG>, Chandernagore.

The suit was resisted by the defendant-respondents, inter alia, on the ground that the land had vested in the <ORG> under the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Acquisition Act ); that they were tenants, and not licensees, under the plaintiff and after the date of vesting with effect from April 14, 1955, became direct tenants under the <ORG> in respect of suit land and were paying rent to the <ORG>.

<ORG> dismissed the suit holding:

(i) that the defendants were not licensees, but were tenants; and (ii) that the plaintiff was not in <ORG> possession on the date of the vesting (April 14, 1955); so he could not retain the land under Section 6(1) (i) of the Act In the result, the suit was dismissed. <ORG> reversed the decision of the trial court and decreed the suit with the finding that the grant being a licence, the plaintiff-intermediary was entitled to retain the holding under Section 6 (1) (i) of the Act.

Allowing the Second Appeal by the defendants, <ORG> held:

(a) that if the lease (Ex.A), being a lease for 9 years, was void under Section 107 of the Transfer of Property Act, it would still operate as a lease from month to month;

(b) it was not a licence; and

(c) section 28 of the Act applied and, as the plaintiff was not directly working the mine in the land, he could not retain it.

Aggrieved, the plaintiff has come in appeal by special leave to this <ORG>.

The principal question that falls to be determined is: whether Section 6 or Section 28 of the Acquisition Act governs the case ? <ORG> has held that it is Section 28 , and not Section 6 , which is applicable; while the appellant contends that Section 6 is applicable by virtue of which he is entitled to retain the holding.

Section 6 , so far as relevant for our purposes, is in these terms:

"6. Rights of intermediary to retain certain kinds-

(1) Notwithstanding anything contained in Sections 4 and 5 , an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting;..............

(i) Where the intermediary is... an institution established exclusively for a religious or a charitable purpose, or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both-land held in khas by such .. institution or person, not being a tenant, by leave or licence of such.. institution or person."

The contention of the learned counsel for the appellant is that since the suit land was held by the appellant- intermediary in khas for a religious purpose through a licensee-the defendant being a licensee, and not a tenant-he would be entitled to retain and hold this land from the date of vesting by virtue of clause (i) of sub-section (1) of Section 6 .

The other relevant provisions are in Chapter IV of the Acquisition Act. They are as follows:

"Sec. 27. Provisions of Chapter IV to override other pro visions of the Act.-The provisions of this Chapter shall have effect notwithstanding anything to the contrary elsewhere in this Act."

"Sec. 28. Right of intermediaries directly working mines.-So much of the land in a notified area held by an intermediary immediately before the date of vesting (including sub-soil rights therein, but excluding rights in hats and bazars not in the khas possession of the intermediary and land comprising forests, if any) as was comprised in or as appertained to any mine which was being directly worked by him immediately before such date shall with effect from such date be deemed to have been leased by <ORG> to such .. intermediary. The terms and conditions of such lease shall be as agreed upon between him and <ORG>, or in default of agreement as may be settled by <ORG>:

Provided that all such terms and conditions shall be consistent with the provisions of any Central Act for the time being in force relating to the grant of mining leases."

Section 2(j) of the Mines Act, 1952, defines 'Mine' to mean "any excavation where any operation for the purpose of searching for obtaining mineral has been or is being carried on and includes.. "

"Minor Minerals" as defined in clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act , (No. 67 OF 1957) include "ordinary sand". Clause (c) of the same Section defines "mining lease" as a "lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose." Clause (d) of the same Section defines "mining operations" to mean "any operations undertaken for the purpose of winning any minerals."

Before <ORG>, it was common ground between the parties that the land in dispute has a sub-soil deposit of sand and the rights granted to the respondent, under the document (Ex. I); styled as a 'licence', were "to raise" and "take" away that deposit of sand. Before us, an attempt was made to deviate from that stand by con tending that the deposits of sand are on the surface in the shape of sand- dunes and for removing the same no excavation or mining operations are necessary.

The contention must be repelled. The definition of "mining operations" and "mine", noticed above, are very wide. The expression "winning of mineral" in the definition of 'mining operations' is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth. As pointed out by this Court in <NAME> v. <ORG>), it is wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth.

It is true that in the definition of "Mine", the term "excavation", in the ordinary dictionary sense, means "hole", "hollow" or "cavity made by digging out". But the word "any" prefixed to "excavation"

(1) [1976] 3 S.C.R. 869.

in the context of the phrase "for the purpose of searching for or obtaining mineral" gives it a much more extensive connotation, so that every "excavation", be it in the shape of an open-cast cavity or a subterranean tunnelling, will fall within the definition of 'Mine'. Similarly, it is not a requirement of the definition of 'mining operation' that the activity for winning the mineral, must necessarily be an under ground activity. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of earth. Thus considered, the land ill dispute having large deposits of sand, which is a minor mineral, was admittedly being excavated and removed by the defendant, was at the date of vesting "comprised in or appertained to a mine" within the meaning of Section 28 .

Having seen that the land in dispute is a 'mine' in which 'mining operations' were being carried on, the further question to be considered is, whether this mine was "being directly worked" by the appellant intermediary ? The word "directly", according to Webster's New World Dictionary means "in a direct way, without a person or thing 1 coming between"; "immediately: as directly responsible". The use of the expression "directly" in the context of the word "worked", follow ed by the words "by him", unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine, as lessees under the <ORG>, who immediately before the date of vesting, were working the mine under their immediate control, management and supervision. Thus construed, the phrase "being directly worked by him" in the Section will not take in a case were the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent, royalty or a like amount.

It was contended by the learned counsel for the appellant, that this interpretation of the phrase "directly worked by him", is inapplicable to an intermediary who is an idol because an idol, albeit a juristic person, has perforce to work the mine through a lessee or licensee.

The argument is ingenious but untenable. The idol held the suit land comprised in the mine as an intermediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, through his human representative, the <NAME>, <NAME>. The <NAME> could in that representative capacity, directly work the mine himself. But, instead of doing so, he, on April 27, 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period of 9 years to 3-196SCI/79 the respondents. Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in the suit land, was not being "directly worked " by the intermediary within the con templation of Section 28 .

The provisions of Section 6(1) (i) of the Acquisition Act , extracted earlier, give to an intermediary a right to retain land held by him in khas for the purposes mentioned therein, through a licensee. Section 28 , as construed by us, denies the right to retain the land comprised in a mine or appertaining to a mine, it, at the material date, it was not being directly worked by the, intermediary but through a licensee, or other agency to whom the right to conduct mining operations had been granted by the intermediary. In that respect, the provisions of Section 28 (in Chapter IV) are contrary to those of Section 6(1) (i). In this situation, according to the legislative mandate in Section 27 , the provisions of Section 6(1)(i) must yield to those in Section 28 .

Assuming arguendo, that the plaintiff was at the material time, holding the land in khas through a licensee and fulfilled all other conditions which entitled him to retain under Section 6(1) (i), then also, this case being in conflict with Section 28 , the latter Section would prevail over the former.

In this view of the matter, it is not, strictly speaking, necessary to resolve the controversy as to whether the transaction (Ex. I) dated April 27, 1950, was a lease or a license. But, as in the <ORG> below, and here also, a good deal of argument was addressed on this point, we propose to go into the same.

It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed. The Agreement (Ex. I), which is named as a licence, is to be construed in the light of this cardinal canon.

The Agreement (Ex. I) is not a very lengthy document. The material part of this document may be extracted as below:

"This deed of Agreement is executed to the effect following:-

................ We <ORG>, have been carrying on the business of sand near Haripal Station. Sand was necessary for carrying on the said business and the said sand Lying inside the land described in the schedule below should be taken out and proposal having been made to the second parties for the purpose of business, the second parties agreed to take settlement to the effect that we can take out the sands of the said lands and become bound by the agreement on the following terms and conditions of taking out the sand from the said land only. TERMS AND CONDITIONS

1. The sand which is in the said land belongs to the own share of <ORG> and should be taken out within the month of Chaitra from 1357 to 1365.

2. Save and except the raising of the said sand there will be no right, title and interest in the land with <ORG>. No right, title and interest will accrue to <ORG> in respect of the land.

3. <ORG> for the purpose of raising sand, will pay Rs. 66/- (Rupees sixty six) per annum as the price of the said sand. If the Government fixes any new amount of demand, then, save and except this, they will take the said amount of Rs. 66/- and/or <ORG> will not be entitled to claim the same. If the amount is not paid within the month of Chaitra every year, then the parties will not be entitled to raise the sand next year, and for realisation of the said amount of Rs. 66/-, <ORG> can bring a suit against <ORG>, and will get the arrears of interest at the rate of 12%.

4. At the end of the stipulated period, <ORG> will take khas possession of the said land; and the licence of <ORG> will be revoked...."

(Emphasis added) From what has been extracted above, the following characteristics of the transaction are clear: F

(i) A right to "raise" and "take out" and remove sand "lying inside" the land in dispute was granted by the plaintiff to the defendant. The words "raise" and "take out sand" from "inside" the land are wide enough to include not only the "right to carry out all the operations" necessary for extracting sand, but also to take it away and appropriate it. Construed in the context of the document as a whole, these words put it beyond doubt that rights to carry out mining operations" [within the definition in clause (d) of Section 3 of the Central Act 67 of 1957] for winning sand and to appropriate it were granted.

(ii) The rights were granted for a period of 9 years, commencing from April 27, 1950.

(iii)These rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted. The "price" fixed is Rs. 66/- per annum. This consideration is payable 0in the month of Chaitra every year. In case of default, <ORG> (grantee) shall not be entitled "to raise" the sand "next year" and <ORG> (grantor) shall have a right to recover the arrears of rent together with interest at 12% by bringing a suit against <ORG>.

(iv) "<ORG> will be entitled to take khas possession of the land" "at the end of the stipulated period". This condition, (contained in paragraph 4 of Ex.I) read along with the other parts of the document, necessarily implies that if <ORG> continues to pay the "price", as stipulated,

(a) he shall be entitled to enter into and remain in exclusive khas possession of the land for the purpose of carrying out the mining operations for the full stipulated period of 9 years and (b) <ORG> (plaintiff) will not be entitled to retake khas possession of the land and revoke the so-called "license" before the end of the said period of 9 years.

It is contended on behalf of the appellant that, according to Condition 2 of the Agreement (extracted above), "except the raising of the sand", no right, title and interest in the land was given to the defendant. It is submitted that in view of this express condition, the transaction was only a 'licence'. Relying on Paragraph 899 of Halsbury's Laws of England, 3rd Edition, Vol. 26, it is maintained that, in any case, it is not a 'lease' as defined in Section 105 of the Transfer of Property Act, but only a contract to sell sand, the price being pay able in yearly instalments. It is emphasised that the essential characteristic of a "lease" is that the subject is one which is occupied and enjoyed and the corpus of which does! not in the nature of things and by reason of user disappear. Reference has also been made to the dictum of <ORG> in <CITATION> (l), and the decision of <ORG> in <NAME> v. Christie(2).

We are unable to accept these contentions. Para 899 of Halsbury's Laws of England (ibid) reads, thus:

"A lease may be granted of land or any part thereof, and since minerals are a part of the land it follows that a (1) L. R 44 I.A.246.

(2) [1873] L. R. 2. H. L. (Sc.) 278.

lease can be granted to the surface of the land and the A minerals below, or of the surface alone, or of the minerals alone. It has been said that a contract for the working and getting of minerals alone though for convenience called a mining lease, is not in reality a Lease, at all in the sense in which one speaks of an agricultural lease, and that such a contract, properly considered, is really a sale of a portion of 1 the land at a price payable by instalments, that is, by way of rent or royalty, spread over a number of years."

This statement of the law in England, appears to be founded on the observations of <NAME>, <NAME> in <NAME> v. <NAME> (ibid) and <NAME>, <NAME> in Aldam's Settled Estate(1).

In <NAME> (ibid), Lord <NAME>, delivering the opinion of the Board, said that "it must be born in mind also that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear". Counsel for the appellant has adopted this very argument. But this observation should not be torn out of the context. Lord <NAME> had further observed: "In order to cause the latter speciality to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased". Thus, Lord <NAME> had himself pointed out that minerals may be made a part of the subject-matter of a lease, and in such a case the lease would permit the idea of the partial consumption of the subject-matter of the lease.

It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of <ORG> in <CITATION> (2), a settlement of the character of a mining lease is everywhere in India regarded as 'lease'. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all The characteristics of a 'lease' as defined in the Transfer of Property Act . Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country.

In <NAME>'s case (<NAME>, J., speaking for the Bench, held that a coal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such H (1)  2 Ch. 46 at page 56.

(2) I. L. R. 59 Cal. 1314.

settlement some portion, however small, of the surface has to be used for carrying on the mining operations and taking the coal out.

Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by Ex. I, not only falls within the definition of a "mining lease" under Act 67 of 1957, but also partakes of all the essential characteristics of a 'lease' defined in Section 105 of the Transfer of Property Act.

Section 105 , Transfer of Property Act , defines a 'lease' of immovable property as-

"a transfer of a right to enjoy such property, made for a a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."

In the second paragraph of the Section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent."

The definition of 'immovable property' given in Section 3 , Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3 . According to the definition given in <CITATION> of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression 'immovable property' comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be 'immovable property' for the purpose of Section 105 , Transfer of Property Act .

A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immovable property' within the meaning of Section 105 ; more so, when-as in the instant case-it is coupled with a right to be in its exclusive <ORG> possession for a specified period. The 'right to enjoy immovable property' spoken of in Section 105 , means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108 , Transfer of Property Act , which regulates the rights and liabilities of lessors and lessees of immovable property.

In the view we take, we are supported by the observations of <ORG> in <NAME> v. <ORG>). Delivering the opinion of the Board, Lord <NAME> said:

"In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are ex hausted the physical occupation must necessarily be partial."

<CITATION> (2), the law, as laid down in <NAME>'s case (ibid), was strongly relied upon by the appellants, therein. Negativing this contention, <ORG> pointed out that the rights and liabilities of lessor and lessee are defined in Section 108 of the Transfer of Property Act, and the appellant h ad not shown that the respondent had failed, or was not in a position to perform the duties incumbent on a lessor under Section 108 of the said Act.

The discussion will not be complete without noticing, the decision of <ORG> in <CITATION> (3), which is ill point. In that case. after an exhaustive survey of all the decisions on the subject, (including some of those which have been cited before us) a Full Bench consisting of three eminent Judges, held that coal-mining settlements whereby certain rights of entering upon the land of the settlor, sinking shafts etc. and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on the amount of coal raised and the amount of coke manufactured, subject always to a minimum annual sum which was always payable irrespective of what coal was raised or coke manufactured, were not "a sale of coal", but could be regarded as 'leases' within the meaning of Section 105 read with Section 108 , Transfer of Property Act , or with-

(1) [1930] L. R. 58 I. A. 29.

(2) [1931] 1. L. R. 59 Cal. 699; L. R. 58 I. A. 392. (3) 1. L. R. (XX) Patna 13.

in the legal acceptance of the term "lease" in this country. This decision of <ORG> was affirmed by <ORG>, and the appeal filed by <NAME> was dismissed. (See L.R. 70 I.A. 180).

The ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex. I), though labelled as a licence, has all essential elements of a 'lease' ever. under Section 105 of the Transfer for Property Act . In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a 'lease' in the accepted legal sense of the term and not a 'licence' as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1)

(i) could cover the appellant's case and give him a right to retain the land in dispute eve if Section 28 was out of his way.

In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28 .

For all the foregoing reasons, the appeal fails and is dismissed. In the circumstances of the case, however, there will be no order as to costs.

V.D.K. Appeal dismissed.


PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR, PATNA DATE OF JUDGMENT12/02/1979 BENCH: <NAME>, P.N. BENCH: <NAME>, P.N. PATHAK, R.S. KOSHAL, A.D. CITATION: 1979 AIR 1360 1979 SCR (3) 169 1980 SCC (1) 81 CITATOR INFO : RF 1980 SC1789 (112) RF 1981 SC 746 (3) RF 1981 SC 939 (2) E 1981 SC1675 (1,2) R 1982 SC1167 (1,2) R 1983 SC 361 ((2)19) RF 1985 SC 231 (2) R 1986 SC 180 (39) RF 1986 SC1773 (12) F 1987 SC 149 (9) RF 1988 SC1531 (87) F 1989 SC1335 (71) RF 1992 SC1701 (1,21,28,29,31,32,35) ACT: Administration of Justice-Pre-trial detention-Right of under-trial prisoner to have a speedy trial- Art. 21 of Constitution of India. Pre-trial release-Concept of-Determinative factors in grant of bail and release of under-trial prisoner on personal bond without monetary obligation explained. HEADNOTE: In their petition for the issue of a writ of habeas corpus the petitioners stated that a large number of men and women including children were in jails for years awaiting trial in courts of law and that the offences, even if proved, would not warrant punishment for more than a few months. Although sufficient opportunity was given, the <ORG> did not appear before the Court. Directing the release of the undertrials on their executing a personal bond. ^ HELD : (Per <NAME> & <NAME>, JJ.) 1. A procedure which keeps large number of people behind bars without trial for long, cannot possibly be regarded as "reasonable, just or fair" so as to be in conformity with the requirement of Art. 21. It is necessary, therefore, that the law as enacted by the <ORG> and as administered by the courts must radically change its approach to pre-trial detention and ensure `reasonable, just and fair' procedure which has a creative connotation after the decision of <ORG> in <NAME> case. [174 C-D] 2. Speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice. Though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art. 21. Speedy trial which means reasonably expeditious trial, is an integral part of the fundamental right to life and liberty enshrined in Art. 21 , [179 H, 180 C, F] Art. 21 confers fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance 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 Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Any 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. [180 D-E] 170 <CITATION> ,  2 SCR 621; referred to. 3. Expeditious trial and freedom from detention are part of human rights and basic freedoms. The judicial system which permits incarceration of men and women for long periods of time without trial is denying human rights to such undertrials and withholding basic freedoms from them. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. [173 C-E, F] 4. One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is the highly unsatisfactory bail system, which suffers from a property oriented approach. It proceeds on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Even after its re-enactment, the Code of Criminal Procedure continues to adopt the same antiquated approach. Where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay the amount of bail in case the accused fails to appear to answer the charge. [174 E-G] This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the Court is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. [174 G-175 D] The bail system, as it operates today, is thus a source of great hardship to the poor and if the civil effects of poverty are to be eliminated and a fair and just treatment assured to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardizing the interest of justice. [177 C-D] Risk of monetary loss is not the only deterrent against fleeing from justice. There are also other factors which act as equal deterrents against fleeing. Therefore, the courts, even under the law as it stands today, must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. If the court is satisfied, after taking into account, on the basis of 171 information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. [177 E, G, H] 5. To determine whether the accused has his roots in the community which would deter him from fleeing, the court should take into account the following factors concerning the accused: (1) The length of his residence in the community, (2) his employment status, history and his financial condition, (3) his family ties and relationships, (4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release on recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and (8) any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear. [178 A-E] If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non- appearance, the accused may, as far as possible, be released on his personal bond. If facts are brought to the notice of the court showing that, having regard to the condition and back-ground of the accused, his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious, the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. [178 F-179 D] 6. Necessary to provide by an amendment of the penal law that if an accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. [177 F] 7. High time that the <ORG> Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. [180 H] 172 Pathak J. (concurring) (1) The primary principle of criminal law is that imprisonment may follow a judgment of guilt, but should not precede it. There is also another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty. [181 E] (2) It is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. [181 D] (3) The Code of Criminal Procedure both the old Code and the new include provisions for the release of a person on bail or on the execution of a bond without sureties for his appearance. There is an amplitude of judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance within the existing provisions of the Code of Criminal Procedure and it is for the <ORG> to fully acquaint themselves with the nature and extent of their discretion in exercising it. It is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account. [181 E, 182 B-C] (4) The abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event greatly reduced, if considerations like "nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record or appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings", are taken into consideration when determining pre-trial release and the amount of security or monetary obligation to be imposed. [182 G, E-F] United <ORG>s Bail Reforms Act, 1966: 18 USS 3146 (b), <CITATION> .  4 SCC 47; referred to. (5) Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.[183 B] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979. Mrs. <NAME> for the Petitioners <NAME> and <NAME> for the Respondent.

The Judgment of <NAME> and <NAME>, JJ. was delivered by <NAME>, <NAME>, J. gave a separate Opinion.

BHAGWATI, J.-This petition for a writ of habeas corpus discloses a shocking state of affairs in regard to administration of justice in the State of Bihar. An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in courts of law. The offences with which some of them are charged are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial. We are shouting from house tops about the protection and enforcement of human rights. We are taking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end? Are expeditious trial and freedom from detention not part of human rights and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence. They have over the years ceased to be human beings they are mere ticket-numbers. It is high time that the public conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large numbers of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice-a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigures the fair and otherwise luminous face of our nascent democracy.

Though we issued notice to the State of Bihar two weeks ago, it is unfortunate that on the 5th February, 1979 no one has appeared on behalf of the State and we must, therefore, at this stage proceed on the basis that the allegations contained in the issues of <ORG> dated 8th and 9th January, 1979 which are incorporated in the writ petition are correct. The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the consci-

ence and disturb the equanimity of any socially motivated lawyer or judge. Some of the undertrial prisoners whose names are given in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun. What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, "little Indians, are forced into long cellular servitude for little offences" because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude. There can be little doubt, after the dynamic interpretation placed by this <ORG> on Art. 21 in <CITATION> (1) that a procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded as 'reasonable, just or fair' so as to be in conformity with the requirement of that Article. It is necessary, therefore, that the law as enacted by the <ORG> and as administered by the courts must radically change its approach to pretrial detention and ensure 'reasonable, just and fair' procedure which has creative connotation after <NAME> case supra.

Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is hero that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. <ORG> appointed by <ORG> under the chairmanship of one of us, Mr. Justice <NAME>, emphasised this glaring inequality in the following words:

"The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened <ORG> in the United States such as <ORG> and <ORG> shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount."

<ORG> also pointed out how the practice of fixing the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before trial, is harsh and oppressive and discriminates against the poor:

"The discriminatory nature of the bail system becomes all the more acute by reason of the mechanical way in which it is custormarily operated. It is no doubt true that theoretically the Magistrate has broad discretion in fixing the amount of bail but in practice it seems that the amount of bail depends almost always on the seriousness of the offence. It is fixed according to a schedule related to the nature of the charge. Little weight is given either to the probability that the accused will attempt to flee before his trial or to his individual financial circumstances, the very factors which seem most relevant if the purpose of bail is to assure the appearance of the accused at the trial. The result of ignoring these factors and fixing the amount of bail mechanically having regard only to the seriousness of the offence is to discriminate against the poor who are not in the same position as the rich as regards capacity to furnish bail. The Courts by ignoring the differential capacity of the rich and the poor to furnish bail and treating them equally produce inequality between the rich and the poor: the rich who is charged with the same offence in the same circumstances is able to secure his release while the poor is unable to do so on account of his poverty. These are some of the major defects in the bail system as it is operated to-day."

The same anguish was expressed by President <NAME> at the time of signing the Bail Reforms Act, 1966:

"Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system.

This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his freedom. But poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any more likely to flee before trial.

He stays in jail for one reason only-because he is poor....."

The bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.

It is high time that our <ORG> realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the signature tune of our constitution and <ORG> would do well to consider whether it would not be more consonant with the ethos of our constitution that instead of risk of financial loss, other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should be in appropriate cases be released on his personal bond without monetary obligation. Of course, it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good. The new insight into the subject of pretrial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our <ORG> in regard to pretrial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community.

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record or prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability.

7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what we have said here in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we have directed the undertrial prisoners whose names are given in the two issues of <ORG> should be released forthwith on their personal bond. We should have ordinarily said that personal bond to be executed by them should be with monetary obligation, but we directed as an exceptional measure that there need be no monetary obligation in the personal bond because we found that all these persons have been in-jail without trial for several years, and in some cases for offences for which the punishment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim order. The peculiar facts and circumstances of the case dictated such an unusual course.

There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." So also Article 3 of the European Convention on Human Rights provides that:

"every one arrested or detained-shall be entitled to trial within a reasonable time or to release pending trial."

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 procedure prescribed by law and it is not enough to constitute compliance 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 reasonable 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 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on <ORG> that it is high time that <ORG> realised its responsibility to the people in the matter of admini-

stration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but <ORG> would also have to man them by competent judges and whatever is necessary for the purpose of recruiting competent judges, such as improving their conditions of service, would have to be done by <ORG>, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is to-day a meaningless and empty word.

These are the reasons for which we made our order dated 5th February, 1979. We shall now proceed to hear the writ petition on 19th February, 1979.

PATHAK, J.-It is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilized norms of human liberty. Any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. The primary principle of criminal law is that imprisonment may follow a judgment of guilt. But should not precede it. But there is another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty. Now, the Code of Criminal Procedure, both the old Code and the new, include provision for the release of a person on bail or on the execution of a bond without sureties for his appearance. Nonetheless, as appears prima facie from the record before us, a large number of persons whose names, find mention in copies of <ORG> of January 8 and 9, 1979, have been in prison for long year without even being brought to trial. Although sufficient opportunity was given to the State of Bihar to meet the allegations made, it is unfortunate that no one has appeared on behalf of the State. In view of the importance of the questions arising on the habeas corpus petition, we have provided further opportunity to the State to appear and accordingly have posted the petition for final hearing on February 19, 1979. But at the same time we see no reason why interim relief should be denied to these undertrials. After carefully considering what has been said in respect of each individual undertrial, we have considered it appropriate, in the interests of justice, to make the order of February 5, 1979 directing the release of the persons mentioned in that order on their executing a personal bond. The order is somewhat unusual in that it directs that the personal bond to be taken in each case should not be based on any monetary obligation. The condition has been included as an exceptional measure, under the persuasive pressure of the particular facts and circumstance of the case.

In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance, I have to say this briefly. There is an amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure, and it is for the <ORG> to fully acquaint themselves with the nature and extent of their discretion in exercising it. I think it is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account. A synoptic impression of what the considerations could be may be drawn from the following provision in the United States Bail Reform Act of 1966:

"In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pretrial release in India could be avoided or, in any event, greatly reduced <CITATION> .

I consider it desirable to refrain from making any final comment or observation on the legality and propriety of the continued detention of the undertrial prisoners whether on the ground of infringement of Article 21 of the Constitution or on other grounds. That, I think, should await the final determination of the habeas corpus petition.

These are the reasons which have influenced me in making the order dated February 5, 1979.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an undertrial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of undertrial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step in defence of individual liberty if appropriate provision was made in the statute for non-financial releases. N.V.K.