2S.C.R.

SUPREME COURT REPORTS 919

Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants. and settll:'. their own terms with them. \Ne cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended. On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3 (b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in oceupation. We prefer to accept this contention, as it fully effectuates the intention of the legislature. In the result, we must hold that the one-sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3 (b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act. The petition of the respondent in so far as it relates to this inam must be dismissed.

This appeal is accordingly allowed, and in accordance wit~1 the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court. The parties will be:.ir their own costs in the court below.

ANANDA BEHERA AND ANOTHER

THE STATE OF ORISSA AND ANOTHER

[S. R. DAs, AcnNG C. J.,

VIVIAN BosE,

]AGAN-

NADHADAS,

JAFF.R IM.'\M and

CHANDRASEKHARA

AIYAR JJ.] Ft; ndamental 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 imtrument for transfer-Such sale, if creates any right to property-Non-recognition by the State, if transgresses any fundamental 1ights-Constitution of India, Arts. 19(1) (/), 31(1)-0rissa Estates Abolition Act, 1951 (Orissa Act I of 1952) -Transfer of Property Act (IV of 1882), s. 54.

Thi Stat• of Madras and

anothu

V. Srinivcstt

Ayyangar

Vmkatarama

Ayyar].

Octob., 2 7.

Ananda Behera and anathtr v.

The State of Orissa and another

The petitioners obtained oral licenses for catching and appropriating fish fron1 specified sections of the Chilka Lake from its proprietor, t!e ]aja of Parikud, on payn1ent of heavy sums and obtained receipts in accordance with the prevailing practice. This was before the passinz 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 subscriuent to such vesting. The State of Orissa refused to recognise them and \Vas seeking to re~ au'.::tion the rights of fishery. The petitioners contended that it had thereby infringed or was abot to infringe their fu0damental rights under Arts. lY(l)(f) and 31(1) of the Constitution and claimed that the tronsactions being sales of future goods, namely, the fish, the Act which •vas confined to imtnovable 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 the; n but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other i; vords, a profit a prendre \vhich is imn1ovable property \Vithin 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 case was valued at n1ore than one hundred rupees and was effected without \vriting 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 had no fundamental rights to enforce.

Fir1n Chhotabhai Jethahai Patel & Co. v. The State of Madhya Pradesh, ( [ 1953 J S.C.R. 476), distinguished and held inapplicable.

That it \ras not necessary in the present case to decide whether the contract \vas property \Vithin the 1l1eaning of Arts. 19(1)(£) and 31 ( 1 ), but assuming it to be so, the State has not taken such pro~ perty 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 qot confiscated or acquired or taken possession of the contract as such by clai1ning any benefits under it.

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 peti- . tioners.

C K. Daphtary, Solicitor-General for India, (Porus A. Mehta and P. G. Gokhple, with him), for respondent No. L ·

1955.

October 27.

The Judgment of the Court was delivered hy BosE J.-This jurlgment 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 Raia 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 i:atching 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 :

1. 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 m 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

Ananda Behera

and another v.

The Stale of Orissa

and another

A.nanda Behtra

tutd anothlr

The Stat• of Orissa ad another

Bost].

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 rigius under articles 19(1)(f) and 31(1) 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 property.

We agree with the learned Solicitor-General that if this is the basis of their right, then their petition under article 32 is mis.conceived 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 regu1.ate, control and sell the fisheries on it: If the petitioners' rights are no 1noe t1"m the right to obtain future goods under the Sale of Gooch Act, then that is a purely personJ.1i-1gl1t ::irising out of contract to \vhich the State of Orissa is not a party and in any event a

re!usal to perfor1n the co~1tract tl1at 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

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-

(!) [1953) S.C.R. 476. 4-85 S. C. India/59

Ananda B11ur11

am/ anolhlr

Thi Stall of Oriss11

and anolh1r

BoSI].

.Atwula Bllrno

aNl anotlllr

Thi Stou of Ori.rsa

ad an""6r

Bou].

i:umbrance" 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 bacause even if it be assumed that it is that kind of property the State of Orissa has not taken the petitioners' contract away 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 ccnfis.cated 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.