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Cites 8 docs - [View All]
The Transfer of Property Act, 1882
Section 54 in The Transfer of Property Act, 1882
Article 32 in The Constitution Of India 1949
The General Clauses Act, 1897
Chhotabrai Jethabai Patel And Co vs The State Of Madhya Pradesh(And ... on 22 December, 1952
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Smt. Guddi Wife Of Keshav Das vs State Of Uttar Pradesh And Others on 1 April, 1997
Orient Paper Mills Ltd. vs The State Of Madhya Pradesh And ... on 24 December, 1970
Shrimati Shantabai vs State Of Bombay & Others on 24 March, 1958
State Of Orissa & Other vs The Tltaghur Paper Mills Company ... on 1 March, 1985
Badri Prasad vs State Of Madhya Pradesh & Anr on 11 October, 1968

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Supreme Court of India
Ananda Behera And Another vs The State Of Orissa And Another on 27 October, 1955
Equivalent citations: 1956 AIR 17, 1955 SCR (2) 919
Author: V Bose
Bench: Das, Sudhi Ranjan, Bose, Vivian, Jagannadhadas, B., Imam, Syed Jaffer, Aiyar, N. Chandrasekhara





 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	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
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
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 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.


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 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) [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.