Ananda Behera & ANR Vs. The State of
Orissa & ANR  INSC 56 (27 October 1955)
VIVIAN AIYAR, N. CHANDRASEKHARA DAS, SUDHI
RANJAN JAGANNADHADAS, B.
IMAM, SYED JAFFER
CITATION: 1956 AIR 17 1955 SCR (2) 919
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.
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
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, ( S.C.R. 476), distinguished and held
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.
ORIGINAL JURISDICTION: Petition No. 286 of
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
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
2. On 2-8-50 for rights in Jayamal Prawn for
3. On 18-9-51 for rights in Solakudi Prawn
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) 
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
The petition fails and is dismissed with