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Petitions Nos. 286, 289 and 304 of 1955, decided on 27th October 1955.

S. 3 (26)‑Right to catch and carry away fish from a lake, whether immovable property‑Whether an oral sale of this right of the value of more than hundred rupees passes any title‑Government of India Act, 1935 as adapted by Pakistan, S. 299‑Transfer of Property Act (IV of 1882), S. 3‑Easement Act (V of 1882). S. 52.

Petitioners carried on the business of catching and selling fish from a lake which was once the estate of a Raja. Before the estate vested in the State of Orissa the petitioners had obtained ban oral contract on payment of heavy sums licences for catching and appropriating fish from the lake. The period of the licences had not expired but the State refused to recognize the licences when the petitioners filed petition seeking writs under Article 32 on the ground of their fundamental rights under Articles 19 (1) (f ) and 31 (1) were about to be infringed.

Held : The right to catch and carry away fish in specific sections of the lake over a specific future period is regarded as an interest in land because it is a right to take some profits of the soil for the use of the owner of the right. Section 3 (26) 6f the General Clauses Act defines "immovable property" as including profits that arise out of the land and the right to question being benefit that arises out of the land is immovable property.

11 Halsbury's Laws of England (Hailsham Edition) pages 382 & 383 ref.

Articles 19 (1) (f.) and 31 (1) [Pakistan Constitution (Bill) Clause 11 (a) and 15 (1)]‑Con tract t 7 grant licences to catch fish in lake in an estate which subsequently vested in a State‑State declining to recognise con tract‑No fundamental right infringed.

The "sales" in this case were oral, without‑writing or registration. That being the case the transaction passed no title or interest and accordingly the petitioners had no enforceable fundamental right. Even if it be assumed that a contract is property within the meaning of Articles 19 (1) (f) and 31 (1) the State of Orissa did not take the petitioners' contract away from them or prevented them from "acquiring, holding or disposing" it.

The petition was dismissed.

The Firm Chhotabbai Patel & Co. v. State of Madhya Pradesh 1953 S C R 476 = A I R 1953 S C 108 distinguished.

H. Mahapatra and G. C. Mathur, Advocates for Peti tioners.

C.K. Daphtary, Solicitor‑General for India, (Porus A. Mehta and P. G. Gokhade, Advocates with him) for Respondent No. 1.

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 24th September 1953 and has now ceased to exist in its original form. The Act came into force on 9th February 1952.

The further facts are set out in' paras: 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 ex‑proprietor 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 tile 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 30th July 1950 for rights in Gerasar‑ Prawn for 1955-56.

(2) On 2nd August 1950 for rights in Jayamal Prawn for 1955‑56.

(3) On 18th September 1951 for rights in Solakudi Prawn for 1955‑56.

(4) On 6th May 1952 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 were for future years, all after the date of vesting.

The State of Oriasa refuse to recognise these licenses and were about to re‑auction the tights 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 (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 transac tions were sales of future goods, namely of the fish in these sections of the lake, and that as fish is movable property Orissa Act I of 1952 is not attracted as that Act is confined to immovable 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 immovable property and that it/ formed part of the Raja's estate. As such if 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. Hut 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 para. 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 take 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 immovable property.

Section 3 (26), General Clauses Act, defines "immovable property" as including benefits that arise out of the land. The Transfer of Property Act does not define the term except to say that immovable 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 immovable 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 immovable property and as in this case it was purchased for a price that was paid it requires writing and registration because of section 54 T. P. Act.

If a 'profit a prendre' is regarded as tangible immovable 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 : their was neither writing nor registration. That being the case, the transactions passed note title or interest and accordingly the petitioners have no fundamental right that they can enforce.

It is necessary to advert to‑'Firm Chhotabhai Jethabhal Patel & Co. v. State of Madhya Pradesh' (A I R 1953 S C 108.(A)) 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 "encumbrance" 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 "immovable 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 (l) (f) and 31 (1). Again, we need not decide this because even if it be assumed that it is that kina 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 (l) 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.

M. I. B. Petition dismissed.

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