PETITIONER: ANANDA BEHERA AND ANOTHER Vs. RESPONDENT: THE STATE OF ORISSA AND ANOTHER. DATE OF JUDGMENT: 27/10/1955 BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN JAGANNADHADAS, B. IMAM, SYED JAFFER CITATION: 1956 AIR 17 1955 SCR (2) 919 ACT: Fundamental Rights, Enforcement of-Oral sale of fishery rights for future years by owner of estate before it vested in the State by legislation-Nature of such rights-Profit a prendre, if immovable property requiring registered instrument for transfer--Such sale, if creates any right to property-Non-recognition by the State, if transgresses any fundamental rights Constitution of India, Arts. 19(1) (f).31(1)-Orissa Estates Abolition Act, 1951 Orissa Act I of 1952)-Transfer of Property Act (IV of 1882), s. 54. 920 HEADNOTE: The petitioners obtained oral licenses for catching and appropriating fish from specified sections of the Chilka Lake from its proprietor, the Raja of Parikud, on payment of heavy sums and obtained receipts in accordance with the prevailing practice. This was before the passing of the Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of Orissa. The licenses, however, were in respect of years subsequent to such vesting. The State of Orissa refused to recognise them and was seeking to reaction the rights of fishery. The petitioners contended that it had thereby infringed or was about to infringe their fundamental rights under Arts. 19(1)(f) and 31(1) of the Constitution and claimed that the transactions being sales of future goods, namely, the fish, the Act which was confined to immovable property had no application. Held, that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by them but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with s. 3(25) of the General Clauses Act. Accordingly s. 54 of the former Act applies. That as the sale of the profit a prendre in the present cage was valued at more than one hundred rupees and was effected without writing and registration it contravened s. 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners and consequently, they bad no fundamental rights to enforce. Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh, ([1953] S.C.R. 476), distinguished and held inapplicable. That it was not necessary in the present case to decide whether the contract was property within the meaning of Arts. 19(1)(f) and 31(1), but assuming it to be so, the State has not taken such property away from the petitioners or prevented them from acquiring, holding or disposing of it. The State merely refuses to recognise the contract and refuses to consider itself bound by it. That may give a cause of action for a suit on the contract but no fundamental right arises as the State has not confiscated or acquired or taken possession of the contract as such by claiming any benefits under it. JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 286 of 1955.
Under Article 32 of the Constitution for the enforcement of
Fundamental Rights.
H.Mahapatra and G. C. Mathur, for the petitioners.
C. K. Daphtary, Solicitor-Generalfor India, (Porus A. Mehta
and P. G. Gokhale, with him), for respondent No. 1.
921
1955. October 27. The Judgment of the Court was delivered
by
BOSE J.-This judgment will also govern Petitions Nos. 287,
288, 289 and 304 of 1955. We will set out the facts in
Petition No. 286 of 1955. The others follow the same
pattern.
The dispute is about fishery rights in the Chilka lake which
is situate in what was once the estate of the Raja of
Parikud. This estate vested in the State of Orissa under
the Orissa Estates Abolition Act, 1951 (Orissa Act I of
1952) on 24-9-1953 and has now ceased to exist in its
original form. The Act came into force on 9-2-1952.
The further facts are set out in paragraphs 2 and 3 of the
petition in the following terms:
“That the petitioners carry on the business of catching and
selling fish particularly. from fisheries within the said
lake.
That long before the vesting of the estate the petitioners
had entered into contracts with the exproprietor and had
obtained from the latter, on payment of heavy sums, licences
for catching and appropriating all the fish from the
fisheries detailed in the schedule given in the accompanying
affidavit and had ,obtained receipts on payment in
accordance with the prevailing practice”.
The lake is divided into sections and this petition is
concerned with four of them. The licenses relating to them
were purchased as follows:
I On 30-7-50 for rights in Gerasar
Prawn for 1955-56
2. On 2-8-50 for rights in Jayamal
Prawn for 1955-56
3. On 18-9-51 for rights in Solakudi
Prawn for 1955-56
4. On 6-5-52 for rights in Jayamal
Chungudi for (1956-57
(1957-58
(1958-59
It will be seen that though the licenses were acquired
before the estate vested in the State of Orissa they
922
were for future years, all after the date of vesting.
The State of Orissa refused to recognise these licenses and
were about to re-auction the rights when the petitioners
filed the present petition seeking writs under article 32 on
the ground that their fundamental rights under articles
19(1)(f) and 31 (I) were, or were about to be, infringed.
The first question that we have to determine is whether the
petitioners acquired any rights or interests in “property”
by their several “purchases”, as articles 19(1)(f) and 31(1)
are dependent on that.
In their petition the petitioners claim that the
transactions were sales of future goods, namely of the ,fish
in these sections of the lake, and that as fish is moveable
property Orissa Act I of 1952 is not attracted as that, Act-
is confined to immoveable I property. ,We agree with the
learned Solicitor-General that if this is the basis of their
right, then their petition under article 32 is misconceived
because until any fish is actually caught the petitioners
would not acquire any property in it.
There can be no doubt that the lake is immoveable -property
and that it formed part of the Raja’s estate. As such it
vested in the State of Orissa when the notification was
issued under the Act and with it vested the right that all
owners of land have, to bar access to their land and the
right to regulate, control and sell the fisheries on it. If
the petitioners’ rights are no more than the right to obtain
future goods under the Sale of Goods Act, then that is a
purely personal right arising out of a contract to which the
State of Orissa is not a party and in, any event a refusal
to perform the contract that gives rise to that right may
amount to a breach of contract but cannot be regarded as a
breach of any fundamental right. But though that is how the
matter is put in the petition we do not think that is a
proper approach to this case.
The facts disclosed in paragraph 3 of the petition make it
clear that what was sold was the right to catch and carry
away fish in specific sections of the lake over a specified
future period. That amounts to
923
a license to enter on the land coupled with a grant to catch
and carry away the fish, that is to say, it is a profit a
prendre: see 11 Halsbury’s Laws of England, (Hailsham
Edition), pages 382 and 383. In England this is regarded as
an interest in land (11 Halsbury’s Laws of England, page
387) because it is a right to take some profit of the soil
for the use of the owner of the right (page 382). In India
it is regarded as a benefit that arises out of the land and
as such is immoveable property.
Section 3 (26) of the General Clauses Act defines
“immoveable property” as including benefits that arise out
of the land. The Transfer of Property Act does not define
the term except to say that immoveable property does not
include standing timber, growing crops or grass. As fish do
not come under that category the definition in the General
Clauses Act applies and as a profit a prendre is regarded as
a benefit arising out of land it follows that it is
immoveable property within the meaning of the Transfer of
Property Act.
Now a “sale” is defined as a transfer of ownership in
exchange for a price paid or promised. As a profit a
prendre is immoveable property and as in this case it was
purchased for a price that was paid it requires writing and
registration because of section 54 of the Transfer of
Property Act. If a profit a prendre is regarded as tangible
immoveable property, then the “property” in this case was
over Rs. 100 in value. If it is intangible, then a
registered instrument would be necessary whatever the value.
The “sales” in this case were oral: there was neither
writing nor registration. That being the case, the
transactions passed no title or interest and accordingly the
petitioners have no fundamental right that they can enforce.
It is necessary to advert to Firm Chhotabhai Jethabai Patel
& Co. v. The State of Madhya Pradesh(1) and explain it
because it was held there that a right to “pluck, collect
and carry away” tendu leaves does not give the owner of the
right any proprietary interest in the land and so that sort
of right was not an “en-
(1) [1963] S.C.R. 476.
117
924
cumbrance” within the meaning of the Madhya Pradesh
Abolition of Proprietary Rights Act. But the contract there
was to “pluck, collect and carry away” the leaves. The only
kind of leaves that can be “plucked” are those that are
growing on trees and it is evident that there must be a
fresh crop of leaves at periodic intervals. That would make
it a growing crop and a growing crop is expressly exempted
from the definition of “immoveable property” in the Transfer
of Property Act. That case is distinguishable and does not
apply here.
It was then argued that a contract is “property’ within the
meaning of articles 19(1)(f) and 31(1). Again, we need not
decide this because even if it be assumed that it is that
kind of property the State of Orissa has not taken the
petitioners’ contract away I from them or prevented them
from “acquiring, holding or disposing” of it. They are free
to sue on it or to assign it if they want. The State merely
says, as any other person might say: “I was not a party to
that contract. Neither its rights nor its liabilities have
devolved on me and I refuse to recognise it or to assume the
obligations of either contracting party”. If the State is
wrong in its attitude that may give rise to a suit against
it for damages for breach of contract or possibly, (though
we do not say it would), to a right to sue for specific
performance; but no question under articles 19(1)(f) and
31(1) can arise because the State has not confiscated or
acquired or taken possession of the contract as such. If it
had it would have claimed the benefits under it. It would
have taken the money that the petitioners paid to the Raja
from the Raja or demanded it over again from the
petitioners. But it is not doing that. It simply refuses
to recognise the existence of the contract.
The petition fails and is dismissed with costs.
925