{"id":122424,"date":"1977-09-01T00:00:00","date_gmt":"1977-08-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bihar-eastern-gangetic-vs-sipahi-singh-others-on-1-september-1977"},"modified":"2016-12-05T05:38:25","modified_gmt":"2016-12-05T00:08:25","slug":"bihar-eastern-gangetic-vs-sipahi-singh-others-on-1-september-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bihar-eastern-gangetic-vs-sipahi-singh-others-on-1-september-1977","title":{"rendered":"Bihar Eastern Gangetic … vs Sipahi Singh & Others on 1 September, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bihar Eastern Gangetic … vs Sipahi Singh & Others on 1 September, 1977<\/div>\n
Equivalent citations: 1977 AIR 2149, \t\t 1978 SCR (1) 375<\/div>\n
Author: J Singh<\/div>\n
Bench: Singh, Jaswant<\/div>\n
           PETITIONER:\nBIHAR EASTERN GANGETIC FISHERMENCO-OPERATIVE SOCIETY LIMITED\n\n\tVs.\n\nRESPONDENT:\nSIPAHI SINGH & OTHERS\n\nDATE OF JUDGMENT01\/09\/1977\n\nBENCH:\nSINGH, JASWANT\nBENCH:\nSINGH, JASWANT\nGOSWAMI, P.K.\nKAILASAM, P.S.\n\nCITATION:\n 1977 AIR 2149\t\t  1978 SCR  (1) 375\n 1977 SCC  (4) 145\n CITATOR INFO :\n RF\t    1979 SC 621\t (30)\n R\t    1980 SC1109\t (4)\n RF\t    1980 SC1285\t (33)\n R\t    1988 SC2143\t (14)\n\n\nACT:\nCivil Procedure Code (Act V of 1908), Order XLI Rules 4\t and\n33-Right  to  obtain  reversal\tof  whole  decree  where  it\nproceeds on ground common to all, applies even at  appellate\nstage.\nConstitution  of India 1950, Article 299, Settlement of\t the\nJalkar\tincomplete,  not  made and executed  in\t the  manner\nprescribed by Article 299 of the Constilion, whether valid.\nTransfer of Property Act (Act IV) 1882, sections 54 and 107,\nGeneral\t Clauses,  Act,\t v.  3(26)-Registration\t Act   1908,\nsection 17(1)(d)-Contract of Sale\/ Lease of fshing rights to\nbe valid, being a \"profit a preadre\", must be by means of  a\nregistered instrument.\nConstitution of India, Article 226-When can malidamus issue.\nEstoppel-Promissory  estoppel-There cannot he  any  estoppel\nagainst the Government.\n\n\n\nHEADNOTE:\nThe  fishery rights in the Gangapath Islampur  Jalkar  which\nsettled\t with the appellant for the year 1974 to 1975  (i.e.\n1-7-1974 to 30--6-1975) at the Jamma of Rs. 1,50,000\/-\twas,\nhowever, made in favour of one Sipahi Singh (Respondent\t No.\n1)  for the period commencing from July 1, 1975 to June\t 30,\n1976, as a result of the public auction at which  respondent\nNo.  1\toffered\t the highest bid of Rs.\t 1,65,000\/-.   On  a\nrepresentation made by respondent No. 1, on 1-2-1976, for  a\nremission  in  the amount at which the settlement  had\tbeen\nmade  in  his favour, on the ground that he had\t suffered  a\nheavy  loss  during  the year 1975-76, as a  result  of\t the\nunlawful activities of the members of the appellant society,\nor in the alternative for continuance of fishery rights\t for\nthe  years  1976-77  and 1977-78  the  Government  made\t the\ndeposit\t by respondent No. 1 of\t one year's  settlement\t fee\nat  Rs. 1,65,000\/- a sine qua non to the issue of the  order\nof  settlement\tin his favour.\tRespondent No. 1  made\tthis\ndeposit\t  informed  the\t Government.   However,\t  taking   a\nfavorable  presentations  made by the appellant\t society  on\nFebruary  18, 9, 1976 to its Revenue Minister and the  Chief\nMinister  Government of Bihar changed its mind\tand  settled\nthe  fishery rights with the appellant, vide its letter\t No.\n10\/S.-4032\/76-1976, date June 29, 1976, on condition of\t the\ndeposit\t by  the latter of Rs. 1,65,000\/- plus\tthe  earlier\narrears\t of Rs. 58,868\/-, in three equal  installments;\t the\nfirst\tinstalment  to\tbe  deposited  before\ttaking\t the\nsettlement  and within a week from that date.  It  was\talso\nmade  clear  that in case the appellant failed to  make\t the\ndeposit\t aforesaid the settlement be issued by highest\tbid.\nOn  June 30, 1976, when respondent No. 1 went to obtain\t the\n\"dakhil\t parwana\",  he\twas  informed  of  this\t  subsequent\ndecision   of  the  State  Government.\t Respondent  No.   1\nchallenged  the said orders by filing a writ petition  under\nArt 226 of the Constitution.  Though the High Court of Bihar\nfound  that  there was no binding  or  enforceable  contract\nbetween\t respondent  No.  1 and\t the  State  Government,  it\nallowed\t the  writ  petition  relying  on  the\tdoctrine  of\npromissory estoppel.\nAllowing the appeal by special leave, the Court,\nHELD : (1) It is no doubt true that the year 1976-77 has run\nout  and the State has not preferred any appeal against\t the\nadverse\t decision  of the High Court but since it  has\tbeen\nimplemented  as\t a respondent to the present appeal  and  in\nactively  supporting the appellant who was  indisputably  in\npossession and\n376\nenjoyment   of\tthe  Jalkar  at\t the  commencement  of\t the\nProceedings  under Article 226 of the Constitution and\tlost\nthe  same as a result of the judgment and order of the\tHigh\nCourt  and  the appellant could not effectively\t pursue\t the\napplication  for  the  lease for the year  1977-78  and\t the\nreversal  of the judgment and order of the High Court  which\nproceeds  on  grounds  common  to  the\tappellant  and\t the\nrespondents 2 to 4 can be made in favour of respondent No. 1\nto  meet the ends of justice under Order XLI Rules 4 and  33\nof  the\t Code of Civil Procedure and  the  State  Government\nmight have been prevented from settling the Jalkar in favour\nof the appellant because of the mandatory injunction granted\nby the High Court.  The appellant, is vitally interested  in\nthe  matter  and  is entitled to maintain  and\tcontinue  to\nprosecute the appeal and to showthat the writ of mandamus\nissued by the High Court is unsustainable in law.[380 E-G]\n(2)  The  provisions,  of Article 299  of  the\tConstitution\nwhich  are  mandatory in character require that\t a  contract\nmade in the exercise of the executive power of the Union  or\nof a State must satisfy there conditions namely, (i) it must\nbe expressly made by the President or by the Governor of the\nState as the case may be; (ii) it must be executed on behalf\nof  the\t President or the Governor as the case may  be;\t and\n(iii)  its  execution  must be by such person  and  in\tsuch\nmanner as the President or Governor may direct or otherwise.\nFailure\t to  comply  with  these  conditions  nullifies\t the\ncontract and renders it void and unenforceable. [380 H,\t 381\nA, D-E]\nIn  the\t instant  case, the settlement of  the\tJalkar\twith\nrespondent  No.\t 1 was not made and executed in\t the  manner\nprescribed by Article 299 of the Constitution.\tAccordingly,\nit  could  not\tbe said to be valid and\t binding  on  State.\nRespondent No. 1 could not base his claim thereon.\nThe  State of Bihar v. M\/s.  Karam Chand Thapar\t &  Brothers\nLtd.<\/a> [1962] 1 S.C.R. 827; Seth Bikhraj Jaipuria v. Union  of\nIndia<\/a> [1962] 2 S.C.R. 880' State of West Bengal v. M\/s.\t  B.\nK.  Mondal & Sons<\/a> [1962] Supp.\t1 S.C.R. 876 and  Mulamchand\nv. State of Madhya Pradesh<\/a> [1968] 3 S.C.R. 214 applied.\n(3)The\tright  to catch and carry away the  fish  being\t a\n'profit a prendre' and as such an immovable property  within\nthe  meaning  of the Transfer of Property Act  read  in\t the\nlight  of s. 3(26) of General Clauses Act, its grant has  to\nbe  by means of a registered instrument if it is a  tangible\nimmovable property exceeding in value of Rs. 100\/- under  s.\n54  of\tTransfer  of property Act and if  it  is  intangible\nwhatever its value.  The transaction of sale of the right to\ncatch and carry away the fish if not effected by means of  a\nregistered instrument would pass no title or interest.\tUser\nof the term 'lease' would not make any difference because  a\nlease of fishery which is immovable property, as defined  in\ns.  2(6)  of the Registration Act, if it is,  for  any\tterm\nexceeding one year or reserves a yearly rent has also to  be\nregistered  as required by s. 17(1)(d) of  the\tRegistration\nAct 1908 and section 104 of the Transfer of Property Act.\nIn  the instant case the transfer of the 'profit a  prendre'\nin  favour of respondent No. 1 was admittedly for two  years\nreserving  a  yearly  rent  and\t was  not  evidenced  by   a\nregistered instrument.\tHe had therefore no right, title  or\ninterest which could be enforced by him. [381 E-H, 382 B]\nAnanda Behera & Anr. v. The State of Orissa & Anr.<\/a> [1955]  2\nSCR 919 followed.\n(4)There cannot be any estoppel against the Government\tin\nexercise   of  its  sovereign  legislative   and   executive\nfunctions.\nThe  instant  case is not one where respondent No.  1  could\ninvoke\tthe doctrine of promissory estoppel particularly  in\nview  of  the  fact that be neither  deposited\tRs.  3,713\/-\nrequired  for execution of the lease agreement nor  was\t any\nparwana issued to him. [382 F, G]\nExcise Commissioner, U.P., Allahabad etc. etc. v. Ram  Kumar\netc. etc.  A.I.R. 1976 S.C. 2237, applied.\n 377\nUnion of India & Ors. v. M\/s.  Afghan Agencies Ltd.<\/a> [1968] 2\nS.C.R. 366, distinguished.\n(5)The\tchief  function\t of  a\twrit  is  to  compel   the\nperformance  of public duties prescribed by statute  and  to\nkeep  subordinate tribunals and officers  exercising  public\nfunction  within the limit of their jurisdiction.  In  order\nthat  mandamus\tmay  issue  to\tcompel\tthe  parties  to  do\nsomething,  it must be shown that there is a  statute  which\nimposes a legal duty and the aggrieved party has a.    legal\nright under the statute to enforce its performance.\nIn  the\t instant case respondent No. 1 was not\tentitled  to\napply  for grant of a writ of mandamus under Article 226  of\nthe.   Constitution and the High court was not competent  to\nissue the same when it has not been shown that 'there is any\nstatute\t or rule having the force of law which casts a\tduty\non  the respondents 2 to 4 which they fail to perform.\t[383\nC-F]\nLekhraj\t Satramdas,  Lalvani v.\t Dy.  Custodian-cum-Managing\nOfficer & Ors.<\/a> [1966] 1 S.C.R. 120; Dr. Rai Sivendra Bahadur\nv. The Governing Body of the Nalanda College<\/a> [1962] Supp.  2\nS.C.R.\t144 and Dr. Umakant Saran v, State of Bihar  &\tOrs.\nA.I.R. 1973 S.C. 964, referred to.\n(6)It  is within the competence of the Government to  give\npreference to a Fishermen Co-operative Society and to settle\nthe  Jalkar  according to the revised policy  and  procedure\nformulated  by it in exercise of its absolute authority\t and\nincorporated   in  its\tcircular  dated\t April\t 18,   1974.\nRespondent No. 1 is entitled to refund on the basis of s. 70\nof  the\t Contract  Act, proportionate  grant  of  the  Jamma\ndeposited  by  him  for\t the year  1977-78  for\t the  period\ncommencing from May 1, 1977 to 30th August 1977. [384 A-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1478  of
\n1976.\n<\/p>\n
Appeal\tby Special Leave from the Judgment and\tOrder  dated
\n20-8-76\t of the Patna High Court in Civil Writ\tJurisdiction
\nCase No’ 1463\/76.\n<\/p>\n
D.V.  Patel, Miss B. Ram Rakhiani and S. K.  Gambhir  for
\nthe Appellant.\n<\/p>\n
Lal Narain Sinha and Yogeshwar Prasad, Rani Arora and  Merra
\nBail, for Respondent No. 1.\n<\/p>\n
D. Goburdhan for Respondent Nos. 2 and 3 and 4.
\nThe Judgment of the Court was delivered by
\nJASWANT\t SINGH, J.-This appeal by special leave is  directed
\nagainst the judgment and order dated August 20, 1976, of the
\nHigh  Court  of Judicature at Patna in Civil  Writ  Judicial
\nCase   No.  1463  of  1976  (filed  by\trespondent  No.\t  1)
\nrestraining the appellant and respondents 2 to 4 herein from
\nacting\ton the basis of letter No. 10-S4032\/76-1976 R  dated
\nJune  29,  1976 addressed by the Department of\tRevenue\t and
\nLand   Reforms,\t  Government  of  Bihar,   to\tthe   Deputy
\nCommissioner, Santhal Pargana, Dumka (which formed Annexure-
\n4  to the aforesaid writ petition) and directing  respondent
\nNo. 2 to execute the lease of the fishery rights in question
\nin favour of respondent No. 1 and to, put him in  possession
\nthereof, if not already done.\n<\/p>\n
The facts and circumstances giving rise to this appeal are :
\nThe  appellant\twhich is a  co-operative  society  commenced
\ntaking\tsettlement  ,of Gangapath Islampur  Jalkar,  bearing
\nTauzi No. 614 (hereinafter
\n378<\/span>
\nreferred   to  as  the\t‘Jalkar’)  immediately\t after\t its
\nestablishment and. registration in 1950 (A.  D.) The fishery
\nrights\tin the Jalkar which were settled with the  appellant
\nfor the year 1974-75 as theretofore was to run from July  1,
\n1974,  to  the\tend  of June, 1975  at\tthe  Jamma.  of\t Rs.
\n1,50,000\/-.  At the end of the said year, it was  discovered
\nthat the appellant had defaulted in payment of the Jamma  to
\nthe  extent  of\t Rs. 66,869\/-.\tThe  settlement\t of  fishery
\nrights in the Jalkar for the period commencing from July  1,
\n1975 to June 30,1976 was made in favour of respondent No.  1
\nby  respondent\tNo. 2 through its Revenue  Department  as  a
\nresult of the public auction at which the former offered the
\nhighest\t  bid  of  Rs.\t1,65,000\/-.   In   February,   1976,
\nrespondent  No.\t 1  made a  representation  to\tthe  Revenue
\nDepartment  of\tthe  Government\t of  Bihar  praying  for   a
\nremission  of  Rs.  75,000\/-  in the  amount  at  which\t the
\nsettlement had been made in his favour on the ground that he
\nhad  suffered  a heavy loss during the aforesaid  period  of
\nsettlement  as\ta result of the unlawful activities  of\t the
\nmembers\t of the appellant society.  In the  alternative,  he
\nprayed\tthat  in  case the State Government  was  not  in  a
\nposition  to grant the remission, the settlement of  fishery
\nrights\tof  the Jalkar be continued with him for  a  further
\nperiod of three years at the same amount in order to  enable
\nhim  to\t recoup the aforesaid loss suffered by\thim.   After
\nsome  inquiry and consideration of the matter,\tthe  Revenue
\nDepartment  of\tthe Government of Bihar\t ordered  that\tthe.
\nsettlement of the Jalkar should continue with respondent No.
\n1  for the years 1976-77 and 1977-78 at Rs.  1,65,000\/-\t per
\nyear.\tTheir Government, however, made the deposit  of\t the
\nsettlement fee of Rs. 1,65,000\/- by respondent No. 1 a\tsine
\nqua  non  to  the  issue of the\t order\tof  settlement.\t  An
\nintimation of this order was given by the Government to\t its
\nDeputy Commissioner, Santhal Pargana, Dumka, vide its latter
\nNo.  10-S-4032\/76R dated April 30, 1976, forming  Annexure-1
\nto the writ petition.  A copy of this communication was also
\nsent to respondent No.\t1 with the direction that he  should
\ndeposit\t Rs. 1,65,000\/- before the issue of  the  settlement
\norder for the aforesaid two years.  In compliance with\tthis
\norder, respondent No. 1 deposited a sum of Rs. 1,65,000\/- on
\nMay  3, 1976, vide challan No. 18 (Bank) dated May  3,\t1976
\nand  by his letter of the even date, he requested  the\tSub-
\nDivisional  Officer,  Sahibganj,  to  issue  the  Patta\t  of
\nsettlement  of the Jalkar for the years 1976-77 and  1977-78
\nin his favour. Respondent  No. 1 also communicated  the
\nfact of the deposit by himof   Rs.  1,65,000\/-\tto   the
\nSecretary to the Government of Bihar,Revenue Department,  by
\ntelegram  dated May 5, 1976.  How-ever, taking a  favourable
\nview  of  the  representations\tmade  by  the  appellant  on
\nFebruary 18, 1976 and March 9, 1976 to its Revenue  Minister
\nand the Chief Minister respectively, the Government of Bihar
\nchanged\t its  mind and informed the Deputy  Commissioner  of
\nSanthal\t Paragana, Dumka vide its letter  No.  10\/S-4032\/76-
\n1976-R\tdated June 29, 1976 that it had “taken the  decision
\nthat  settlement  of the aforesaid Jalkar with\tthe  Society
\n(i.e.  the  appellant) be done for the year 1976-77  on\t the
\nadditional  conditions\t(besides  those\t laid  down  by\t the
\nprescribed rules and conditions) that it would make the\t de-
\nposit of all earlier arrears of Rs. 58,868\/- along with\t the
\namount\tof settlement of Rs. 1,65,000\/- for this  year\t(i.e
\n1976-77) in three equal instalments, the first instalment to
\nbe deposited before taking
\n 379<\/span>
\nthe  settlement” and within a week from that date.   It\t was
\nmade clear in the concluding part of the communication\tthat
\nin case the appellant failed to makethe\t   deposit    as
\naforesaid, ‘the settlement be issued by highest bid.’On
\nJune  30,  1976, when respondent\t    No.\t 1  went  to
\nobtain the’dakhil  parwana’, he is stated to have  been
\ninformed   of  this  subsequent\t decision  of\tthe,   State
\nGovernment.  Averring that he had been put to a considerable
\nfinancial loss as a result of the aforesaid subsequent order
\nof  the Government settling the fishery rights in Jalkar  in
\nfavour\tof the appellant, respondent No. 1 filed a  petition
\nunder  Article 226 of the Constitution in the High Court  of
\nJudicature  at\tPatna  on  July 2,  1976  praying  that\t the
\naforesaid  order settling the fishery rights of\t the  Jalkar
\nwith  the appellant be quashed by a writ of  certiorari\t and
\nthe,  State Government be directed by a writ of mandamus  to
\nexecute\t the lease in his favour for the years\t1976-77\t and
\n1977-78\t and not to disturb his possession over the  fishery
\nright  in  question during the currency of the term  of\t the
\nlease, The respondent also prayed for such other orders,  as
\nthe Court might think fit and proper.\n<\/p>\n
The writ petition was contested by the appellant as also  by
\nrespondents  Nos. 2 to 4 herein.  In the  counter  affidavit
\njointly\t filed\tby  them in  opposition\t to  the,  petition,
\nrespondents Nos. 2 to 4 averred inter alia that there was no
\ncompleted  contract  and  hence\t no  formal  agreement\t was
\nexecuted  between  the State. and respondent No.  1  and  no
\n‘parwana’ was issued in favour of the latter, that the State
\nhad full right and authority to revoke its decision  be-fore
\nexecution  of  the agreement and that in view  of  the\twell
\nestablished principles, ‘the settlement of the Jalkar had to
\nbe,  given  to the appellant if it was willing to  take\t the
\nlease’.\t  The respondents also denied their  liability:\t for
\nthe expenses alleged to have been incurred by respondent No.
\n1  in connection with the preparation for the lease  ordered
\nin his favour by the Government vide the aforesaid Annexure-
\n1  to the writ petition.  They, however, admitted  that\t the
\nappellant  indulged in unlawful activities for four days  in
\n1975-76 which had caused a meager loss to respondent No.  1.
\nIn  the counter affidavit filed by it. the  appellant  while
\ndenying\t that it was a defaulter, averred that its  petition
\nfor  remission\twas pending before the\tRemission  Committee
\nappointed by the State; that the Assistant Registrar and the
\nRegistrar  of the Cooperative Societies had recommended\t the
\nsettlement of fishery rights of the Jalkar in its favour and
\non  representations made by it to the Revenue  Minister\t and
\nthe  Chief  Minister,  the  Government\tof  Bihar  had,\t  in
\nconformity with mandatory orders and instructions, issued an
\norder  of  settlement in its favour on June 28,\t 1976;\tthat
\npursuant  to  that order, it made the necessary\t deposit  by
\n10.35 A.M. on July 1, 1976 and that respondent No. 1 had  no
\nright  to challenge the settlement of the fishery rights  of
\nthe Jalkar in its favour.\n<\/p>\n
The  High Court while holding that there was no\t binding  or
\nenforceable contract between respondent No. 1 and the  State
\nGovernment allowed the writ petition relying on the doctrine
\nof  promissory\testopped.  Aggrieved by\t this  judgment\t and
\norder,\tthe  appellant\thas as already stated,\tcome  up  in
\nappeal to this Court.\n<\/p>\n
380<\/span><\/p>\n
Appearing  on behalf, of the appellant, Mr. Patel has  urged
\nthe following points :\n<\/p>\n
\t      1.    That  since\t there\twas  no\t  completed,
\n\t      binding  and enforceable contract between\t the
\n\t      State  of\t Bihar\tand  respondent\t No.  1\t  as
\n\t      contemplated by Article 299 of\t\t the
\n\t      Constitution,  the  aforesaid  writ   petition
\n\t      filed   by   respondent\tNo.   1\t  was\t not
\n\t      maintainable.<\/p><\/blockquote>\n
\t      2.    That to a case like the present one, the
\n\t      doctrine\t      of promissory estopped had  no
\n\t      application  and the High Court has  erred  in
\n\t      relying upon the same.\n<\/p><\/blockquote>\n
\t      3.    That  in  any case, since there  was  no
\n\t      breach  of any statutory duty in\tthe  present
\n\t      case,  a writ of mandamus could not have\tbeen
\n\t      issued by the High Court.\n<\/p><\/blockquote>\n
Mr.  Lalnaryan Sinha has, on the other hand, submitted\tthat
\nin  the facts and circumstances of the case, the High  Court
\nwas  justified\tin  applying  the  principle  of  promissory
\nestoppel  and there is no warrant for interfering  with\t the
\njudgment and order passed by the High Court.
\nWe shall deal seriatim with the aforesaid three\t contentions
\nraised on behalf on the appellant.  But before attempting to
\ndo,  that,  we\twould like to dispose  of  the,\t preliminary
\nobjection raised on behalf of respondent No. 1 to the effect
\nthat  as the period for which the impugned order dated\tJune
\n29,  1976 settling the Jalkar with the appellant was  issued
\nhas  expired  and  the State has not chosen  to\t prefer\t any
\nappeal against the aforesaid. judgment and order of the High
\nCourt  the appellant has no manner of right or locus  standi
\nto  challenge the continuance of settlement with  respondent
\nNo. 1 for the year 1977-78 and to continue to prosecute\t the
\npresent\t appeal.  It is no doubt true that the year  1976-77
\nhas  run  out  and the State has not  preferred\t any  appeal
\nagainst the adverse decision of the High Court but since  it
\nhas been impleaded as a respondent to the present appeal and
\nis actively supporting the appellant who was indisputably in
\npossession  and enjoyment of the Jalkar at the\tcommencement
\nof the proceedings under Article 226 of the Constitution and
\nlost  the same as a result of the judgment and order of\t the
\nHigh  Court and the appellant could not\t effectively  pursue
\nthe  application for the lease for the year 1977-78 and\t the
\nreversal  of the judgment and order of the High Court  which
\nproceeds on grounds common to the appellant and\t respondents
\n2 to 4 can be made in favour of respondent No. 2 to meet the
\nends of justice under Order 41 Rules 4 and 33 of the Code of
\nCivil  Procedure  and the State Government might  have\tbeen
\nprevented  from\t settling  the Jalkar  in,  favour  of,\t the
\nappellant because of the mandatory injunction granted by the
\nHigh  Court,  the  appellant is, in  our  judgment,  vitally
\ninterested  in\tthe matter and is entitled to  maintain\t and
\ncontinue to prosecution the appeal and to show that the writ
\nof  mandamus  issued by the High Court is  unsustainable  in
\nlaw.  We accordingly overrule the preliminary objection\t and
\nproceed\t to  consider the aforesaid  contentions  raised  on
\nbehalf of the appellant.\n<\/p>\n
Re  :  Contention No. 1 :-It is now well  settled  that\t the
\nprovisions  of\tArticle 299 of the  Constitution  which\t are
\nmandatory  in character require that a contract made in\t the
\nexercise of the executive power of
\n381<\/span>
\nthe  Union or of a State must satisfy three conditions\tviz.\n<\/p>\n
(i) it must be expressed tobe made by the President or by
\nthe Governor\t\tof the State, as thecase  may\tbe;\n<\/p>\n
(ii) it must be executed on behalf of the President orthe
\nGovernor, as the case may be and (iii) its execution must be
\nbysuch\tperson\tand in such manner as  the  President  or
\nGovernor  may direct or authorise.  Failure to\tcomply\twith
\nthese conditions nullifies the contract and renders it\tvoid
\nand unenforceable. (See decisions of this Court in The State
\nof  Bihar O. M\/s Karam Chand Thapar & Brothers Ltd.(1)\tSeth
\nBikhraj\t Jaipuria v. Union of India<\/a> ( 2 ) and State of\tWest
\nBengal v. M\/s.\tB. K. Mondal & Sons.<\/a> (3)
\nIt  will  also be useful to refer to the  Judgment  of\tthis
\nCourt  in Mulamchand v. State of Madhya Pradesh<\/a> ( 4 )  where
\nwhile reiterating the principles laid down in the  aforesaid
\ndecisions, it was observed
\n\t      “There   is   no\tquestion  of   estoppel\t  or
\n\t      ratification   in\t a  case  where\t  there\t  is
\n\t      contravention  of\t the provisions\t of  Article
\n\t      299(1)  of  the Constitution.  The  reason  is
\n\t      that  the provisions of section 175(3) of\t the
\n\t      Government of India Act and the  corresponding
\n\t      provisions of Art. 299(1) of the\tConstitution
\n\t      have  not\t been enacted for the sake  of\tmere
\n\t      form   but   they\t have\tbeen   enacted\t for
\n\t      safeguarding    the    Government,     against
\n\t      unauthorised  contracts.\tThe  provisions\t are
\n\t      embodied\tin  s. 175(3) of the  Government  of
\n\t      India Act and Art. 299(1) of the\tConstitution
\n\t      on the ground of public policy–on the  ground
\n\t      of protection of general public …. and these
\n\t      formalities  cannot  be  waived  or  dispensed
\n\t      with.”\n<\/p>\n
In  the instant case, it is obvious that the  settlement  of
\nthe  Jalkar with respondent No. 1 was not made and  executed
\nin the manner prescribed by Article 299 of the Constitution.
\nAccordingly, it could not be said to be valid and binding on
\nthe  State of Bihar and respondent No. 1 could not base\t his
\nclaim thereon.\n<\/p>\n
That  apart, there is an additional reason for holding\tthat
\nthe  settlement\t of Jalkar with ‘respondent No.\t 1  was\t not
\nvalid  and enforceable.\t The right to catch and\t carry\taway
\nthe fish being a ‘profit a prendre’ i.e. a profit or benefit
\narising out of the land, it has to be regarded as  immovable
\nproperty within the meaning of the Transfer of Property Act,
\nread  in the light of s. 3(26) of the General  Clauses\tAct.
\nIf a ‘profit a prendre’ is tangible immovable property,\t its
\nsale  has to be by means of a registered instrument in\tcase
\nits  value exceeds Rs. 100\/- because, of section 54  of\t the
\nTransfer of Property Act.  If it is intangible, its sale  is
\nrequired to be effected by, a registered instrument whatever
\nits value.  Therefore, in either of the two situations,\t the
\ngrant  of  the ‘profit a prendre’ has to be by\tmeans  of  a
\nregistered instrument.\tAccordingly, the transaction of sale
\nof  the\t right\tto  catch and carry away  the  fish  if\t not
\neffected by means of a registered instrument, would pass  no
\ntitle or interest. (See Ananda Behera & Anr. v. The State of
\nOrissa &<\/a>
\n(1)  [1962] 1 S.C.R. 827.\n<\/p>\n
(2)  [1962] 2 S.C.R. 880.\n<\/p>\n
(3)  [1962] Supp.  1 S.C.R. 876.\n<\/p>\n
(4)  [1968] 3S.C.R.214.\n<\/p>\n
382<\/span><\/p>\n
Anr.(1) Even if the settlement of Jalkar with respondent No.
\n1 is regarded as lease as described by him in Annexure-2  to
\nthe writ petition, it would not make any difference  because
\na lease of fishery which is immovable property as defined by
\nsection\t 2(6) of the Registration Act if it is for any\tterm
\nexceeding one year or reserves a yearly rent has also to  be
\nregistered  as required by section 17(1) (d) of\t the  Indian
\nRegistration  Act, 1908 and section 107 of the\tTransfer  of
\nProperty Act. As  in the instant case, the transfer of\tthe
\n‘profit a prendre’ in favourof\t respondent  No.   1   was
\nadmittedly for two years reserving a yearlyrent\t and   was
\nnot evidenced by a registered instrument.he    had    no
\nright,\ttitle  or interest which could be enforced  by\thim.
\nManifestly therefore, the writ petition was misconceived and
\nought to have been dismissed.\n<\/p>\n
Re  :  Contention  No.\t2 : It is  also\t not  a\t case  where
\nrespondent  No.\t 1 could invoke the doctrine  of  promissory
\nestoppel  particularly in view of the fact that\t he  neither
\ndeposited Rs. 3,713\/- (Rupees three thousand, seven  hundred
\nand  thirteen  only) required for execution  of\t the  lease,
\nagreement  nor was any ‘Parwana’ issued to him and the\tHigh
\nCourt  rejected\t his  plea that after  the  receipt  of\t the
\nGovernment  order,  he invested large amounts  of  money  in
\npurchasing  boats etc. and had to enter into contracts\twith
\nlarge number of employees whose services were needed for the
\nJalkar.\t  It would be appropriate to refer to the  following
\nobservations of the High Court in this respect :-\n<\/p>\n
\t      “The  statement referred to above is such\t too
\n\t      vague and general.  No details or\t particulars
\n\t      have  been given, nor any document annexed  to
\n\t      the   original   writ  application,   or\t the
\n\t      rejoinder\t  aforesaid  in\t support  of   these
\n\t      averments.    therefore,\tdo  not\t accept\t the
\n\t      correctness  of the statements.\tHowever,  it
\n\t      was very unlikely that the petitioner ‘who had
\n\t      already a subsisting lease would not be having
\n\t      enough  or  sufficient materials\tand  it\t was
\n\t      after  the communication regarding  lease\t for
\n\t      the  period 1976 to 1978 that  the  petitioner
\n\t      started  purchasing boats etc.  The vague\t and
\n\t      general  statements  that have  been  made  in
\n\t      paragraph 17 of the original writ\t application
\n\t      do not appear to me to be acceptable.”\n<\/p><\/blockquote>\n
The  doctrine  of  promissory estoppel could  also  not\t be,
\npressed\t into  service in the present case, as\tit  is\twell
\nsettled\t that  there  cannot be any  estoppel  against\tthe,
\nGovernment  in\texercise of its\t sovereign  legislative\t and
\nexecutive   functions.\t(See  Excise   Commissioner,   U.P.,
\nAllahabad etc. etc. v. Ram Kumar etc. etc.(2)
\nThe decision of this Court in Union of India & Drs. v.\tM\/s
\nIndo–\tAfghan Agencies Ltd.<\/a>(3) on which strong reliance  is
\nplaced\t by  counsel  for  respondent  No.  1\tis   clearly
\ndistinguishable.  In that case, unlike the present one,\t the
\nrespondents  were  not seeking to  enforce  any\t contractual
\nright.\tThey were merely seeking to enforce compli-
\n(1)  [1955] 2 S.C.R. 919.\n<\/p>\n
(2)  A.I.R. 1976 S.C. 2237.\n<\/p>\n
(3)  [1968] 2 S.C.R. 366.\n<\/p>\n
 383<\/span><\/p>\n
ance  with  the obligation which was laid upon\tthe  Textile
\nCommissioner  by  the terms of the Export  Promotion  Scheme
\nproviding  for grant ,(by way of incentives to exporters  of
\nwoollen\t textiles and goods) of Entitlement  Certificate  to
\nimport raw materials of a total amount ,equal to 100% of the
\nF.O.B. value of their exports.\tTheir claim was founded upon
\nthe  equity which arose in their favour as a result  of\t the
\nrepresentation\tmade on behalf of the  Government  in  the
\naforesaid Scheme, the exports of woollen goods made by\tthem
\nLo   Afghanistan   acting  upon\t  the\trepresentation\t and
\ncurtailment  of\t the  import  Entitlement  by  the  Textile.
\nCommissioner without notice to them.\n<\/p>\n
Re : Contention No. 3 :-This contention is also well founded
\nand must prevail.  There, is abundant authority in favour of
\nthe proposition that a writ of mandamus can be granted\tonly
\nin  a case where there is a statutory duty imposed upon\t the
\nofficer concerned and there is a failure on the part of that
\nofficer\t to discharge the statutory obligation.\t  The  chief
\nfunction of a writ is to compel performance of public duties
\nprescribed by statute and to keep subordinate tribunals\t and
\nofficers  exercising  public functions within the  limit  of
\ntheir  jurisdiction.  It follows, therefore, that  in  order
\nthat  mandamus\tmay issue to compel the\t authorities  to  do
\nsomething,  it must be shown that there is a  statute  which
\nimposes\t a  legal duty and the aggrieved party has  a  legal
\nright  under  the statute to enforce its  performance.\t(See
\nLekhraj Satramdas, Lalvani v. Deputy  Custodian-cum-managing
\nOfficer & Ors.<\/a>(1) Dr. Rai Shivendra Bahadur v. The Governing
\nBody  of  the Nalanda College<\/a>(2) and Dr.  Umakant  Saran  v.
\nState  of  Bihar & Ors.<\/a>(3) In the instant case, it  has\t not
\nbeen shown by respondent No. 1 that there is any statute  or
\nrule  having  the  force  of  law  which  casts\t a  duty  on
\nrespondents  2 to 4 which they failed to perform.  All\tthat
\nis  sought  to be enforced is an obligation flowing  from  a
\ncontract  which, as already indicated, is also, not  binding
\nand enforceable, Accordingly, we are clearly of the  opinion
\nthat  respondent No. 1 was not ,entitled to apply for  grant
\nof a writ of mandamus under Article 226 of the\tConstitution
\nand the High Court was not competent to issue the same.
\nThis brings us to the consideration of the last question  of
\nthe relief  which can be granted to  the  appellant.   The
\nsettlement  of Jalkar with respondent No. 1 undoubtedly\t did
\nnot  create  any legal right in his favour but as  the\tyear
\n1976-77\t has already run out, the appeal in so far  as\tthat
\nyear  is concerned has become infructuous but in so  far  as
\nthe  appeal  relates  to the year 1977-78,  we\tare  of\t the
\nopinion\t that as respondent No. 1 is not validly  exploiting
\nthe  Jalkar  and  the  application  by\tthe  appellant\t for
\nsettlement  thereof with it is pending with the\t authorities
\nand according to the revised policy and procedure formulated
\nby it in exercise of its absolute authority and incorporated
\nin its Revenue and Land Reforms Department’s circular letter
\nNo. S. 8 Serial
\n(1) [1966] 1 S.C.R. 120.\n<\/p>\n
(2) [1962] Supp. 2 S.C.R. 144.\n<\/p>\n
(3) A.I.R.1973 S.C. 964.\n<\/p>\n
384<\/span><\/p>\n
6-0-4663R  dated  April\t 18,  1974,  addressed\tto  all\t the
\nCollectors of the, State, it is within the competence of the
\nGovernment  to give preference to a  Fishermen\tCo-operative
\nSociety and to settle the Jalkar with the. appellant for the
\nremainder  of  the year 1977-78 at 90% of  the\thighest\t bid
\namount\ti.e. 10% less of the highest auction amount  but  it
\nmay  not  be possible for it to, do so in….  face  of\t the
\nimpediment created by the mandamus issued by the High Court,
\nwe would allow the appeal’: in so far as the current year is
\nconcerned  and leave it open to the Government to grant\t the
\nfishery\t rights\t to  the appellant in  conformity  with\t the
\naforesaid  policy and procedure in case the latter  fulfills
\nthe  conditions\t laid  down therein.  In the  event  of\t the
\nGovernment  settling  the Jalkar with the appellant  or\t any
\nother  Fisherman Society in accordance with the\t policy\t and
\nprocedure  laid\t down in the aforesaid circular\t letter,  it
\nshall, on the basis of section 70 of the Contract Act refund
\nto  respondent\tNo.  1 proportionate  amount  of  the  Jamma
\ndeposited  by him for the year 1977-78 after going into\t the
\naccounts which he was bound to, maintain under order  passed
\nby this Court on May 6, 1977 for the period commencing\tfrom
\nMay 1, 1977 to August 30′, 1977.\n<\/p>\n
In the circumstances of the case, there will be no order  as
\nto costs..\n<\/p>\n
S.R.\n<\/p>\n
Appeal., allowed..\n<\/p>\n
385<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bihar Eastern Gangetic … vs Sipahi Singh & Others on 1 September, 1977 Equivalent citations: 1977 AIR 2149, 1978 SCR (1) 375 Author: J Singh Bench: Singh, Jaswant PETITIONER: BIHAR EASTERN GANGETIC FISHERMENCO-OPERATIVE SOCIETY LIMITED Vs. RESPONDENT: SIPAHI SINGH & OTHERS DATE OF JUDGMENT01\/09\/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT GOSWAMI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-122424","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBihar Eastern Gangetic ... vs Sipahi Singh & Others on 1 September, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bihar-eastern-gangetic-vs-sipahi-singh-others-on-1-september-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bihar Eastern Gangetic ... vs Sipahi Singh & Others on 1 September, 1977 - 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