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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

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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

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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

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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