Judgement

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.

2. The dispute is about fishery rights in the Chilka lake which is situated 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 1 of 1952) on 24-9-1953 and has now ceased to exist in its original from. The Act came into force on 9-2-1952.

3. 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 form 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, licenses 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.

4. 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 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.

5. 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 Art.32 on the ground that their fundamental rights under Art.19(1)(f) and 31(1) were or were about to be infringed.

6. The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as Arts.19 (1) (f) and 31(1)are dependent on that.

7. 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 immovable property. We agree with the learned Solicitor-General that if this is the basis of their right, then their petition under Art. 32 is misconceived because until any fish is actually caught the petitioners would not acquire any property in it. 19

8. 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 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.

9. 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 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 : sec 11 Halsbury s Laws of England (Hailsham Edition) pages 382 and 383.

In England this is regarded as an interest in land (11 Halsury s Laws of England page 387) because it is a right