286 of 1955
Under Article 32 of the Constitution for the enforcement of Fundamental Rights
HMahapatra 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 191f 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 191f and 311 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 vs The State of Madhya Pradesh1 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 1 117 924 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 191f and 311
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 191f and 311 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


Summary:
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 articles 191f and 311 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 section 325 of the General Clauses Act
Accordingly section 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 section 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 vs The State of Madhya Pradesh 1953 SCR 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 articles 191f and 311 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