# BIHAR EASTERN GAi"\IGETIC FISHERMEN CO-OPERATIVE SOCIETY LIMn:ED v. SlPAID SINGH &.OTHERS

- **Citation:** [1978] 1 S.C.R. 375
- **Court:** Supreme Court of India
- **Decided:** 1977-09-01
- **Bench:** P. K. Goswami, Jaswant Singh, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bihar-eastern-gai-igetic-fishermen-co-operative-society-limn-ed-v-slpaid-singh-7282
- **Pages:** 10

## Headnote

Ch·il Procedure Code (Act V of 1908), Order XLI Rules 4 and 33-Right
to obtain reversal of lvhole decree. H·here it proceeds un ground con1mon to
all. applies t:\·en at appellare stage~
Conjfituriou of India 1950, Article 299, Set1/en1ent of the Jalkar inco1nplete,
not nzade and executed in the n1anner prescribed by Article 299 of the Consti~
tion. whether ralid.
Transfer of Properry· Act (Act IV) 1882, sections 54 and 101. General
Clauses, Act, s. 3(26)-Regisiration Act 1908, section 17(1)(d)-Contract of
Sale/ Lea~e o/ fisl1ing rights tu be \'a/id, being a "profit a prendn/', nunt be by
mean~ of a registered i'}strument.
A
B
c
Constitution of India, Ariicle 226-fVhen can 1nandCi1fius. issue.
EJtoppel-Pronzissory e.5toppel~There cannot be_ any estoppel against the
Gorern111ent.
-D
The fisher:Y' rights in the Gangapath Islampur Jalkar v.:hich settled with
the appellant for the year 1974 to 1975 (i.e. 1-7-1974 to 30-6-1975) at the.
Jam.ma of Rs. 1,50,000/- was, however, made in favour of one Sipahi Singh
(Respondent No. 1) for the period commencing from-July--1, 1975 to June
30, 1976, as a result of the public auction at which respondent No. 1 offered
the highest bid of Rs. 1,65,000/-.
On a· representation made by respondent
No. l, on 1-2-1976, for a remission in the amount at which the settlement
had be~n made in his favour, on the ground that he had suffered a heavy
E
los3 during the year 1975-76, as a result of the unlawful activities of
the
members of the appellant society, or in the alternative for granting him the
cont:nuance of fishery rights for, the years 1976-77 and 1977-78 at Rs. 1,65,000/-,
the· Government made the deposit by respondent No. l of one·.year's settlement fee at Rs. 1,6S,OOO/- a sine qua non to the- issue of the order of settlement. in his favour.
Respondent No. 1 made this deposit on 3-5-1976 and
inforrr.ed the Government.
Ho\vever, taking a . favourable view of the representations made by the appellant society on Febn1ary 18, 1976 and :h.Iarch
9, 1976 to its Revenue 1Iinister and the
Chief 1-Iinister
respectively,
the
F
Government of Bihar changed its mind and settled the fishery rights \VitR.
the appellant, vide its letter No. IO/S.-4032176-1976, dated June 29, 1976,
on condition of the deposit by the latter of Rs. 1,65,000/- plus the earlier
arrears of Rs. 58,868/-, in three equal instalments; the first instalment to be
deposited before takirig the settlement and within a week from that date. It
\\-'as also made clear that in case the appellant failed to make the deposit
aforesaid the settlement be issued by highest bid.
On June 30, 1976. when
re~;oond~nt No. 1 went to obtain the "dakhil parwana", he was informed of
G
this subsequent decision
of the - State
Governn1ent.
Respondent - No.
1
challenged the said orders by filing a writ - petition under Art 226 of the
Constitution. Though the High
Court of Bihar found that
there "'as no
binding or enforceable contract between respondent No. 1 and the State Government, it allowed the "'rit
petition relying on the
doctrine of
promissory
estoppel.
AIIov.rjng the nppeal by special leave, the Court,
HEID : ( 1) It is no doubt true \hat the year 197 6· 77 has run out and
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the State has not~preferred any appeal against the adverse decision of the High
Court but ~?nee it has been impleaded as a respondent to the present appeal
and in Clctivtly supporting the appellant Y.-ho was indispu!ab1y in po~session and __ _
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376
SUPREME COURT REP.ORTS
(l9?8J 1 S.C.R.
enjoyment of the Jalkar at the commencement of the proceedings under Article
226 of the Constitution and lost the same as a result of the judgment and
• -1.
order of the High Court and the appellant could not effectively pursue the
application for the
lease for the year 1977-78 and the reversal of the judg·
ment and order of the High Court which proceeds on grounds common to the
appellant and the respondents 2 to 4 can be
made in favour of respondent
No. 1 to meet the ends of justice under Orde

## Text

•
•
\
I
BIHAR EASTERN GAi"\IGETIC FISHERMEN
CO-OPERATIVE SOCIETY LIMn:ED
v.
SlPAID SINGH &.OTHERS
September 1, 1977
375
[P. K. GOSWAMI, JASWANT SINGH AND P. S. KAILASAM, JJ.]
Ch·il Procedure Code (Act V of 1908), Order XLI Rules 4 and 33-Right
to obtain reversal of lvhole decree. H·here it proceeds un ground con1mon to
all. applies t:\·en at appellare stage~
Conjfituriou of India 1950, Article 299, Set1/en1ent of the Jalkar inco1nplete,
not nzade and executed in the n1anner prescribed by Article 299 of the Consti~
tion. whether ralid.
Transfer of Properry· Act (Act IV) 1882, sections 54 and 101. General
Clauses, Act, s. 3(26)-Regisiration Act 1908, section 17(1)(d)-Contract of
Sale/ Lea~e o/ fisl1ing rights tu be \'a/id, being a "profit a prendn/', nunt be by
mean~ of a registered i'}strument.
A
B
c
Constitution of India, Ariicle 226-fVhen can 1nandCi1fius. issue.
EJtoppel-Pronzissory e.5toppel~There cannot be_ any estoppel against the
Gorern111ent.
-D
The fisher:Y' rights in the Gangapath Islampur Jalkar v.:hich settled with
the appellant for the year 1974 to 1975 (i.e. 1-7-1974 to 30-6-1975) at the.
Jam.ma of Rs. 1,50,000/- was, however, made in favour of one Sipahi Singh
(Respondent No. 1) for the period commencing from-July--1, 1975 to June
30, 1976, as a result of the public auction at which respondent No. 1 offered
the highest bid of Rs. 1,65,000/-.
On a· representation made by respondent
No. l, on 1-2-1976, for a remission in the amount at which the settlement
had be~n made in his favour, on the ground that he had suffered a heavy
E
los3 during the year 1975-76, as a result of the unlawful activities of
the
members of the appellant society, or in the alternative for granting him the
cont:nuance of fishery rights for, the years 1976-77 and 1977-78 at Rs. 1,65,000/-,
the· Government made the deposit by respondent No. l of one·.year's settlement fee at Rs. 1,6S,OOO/- a sine qua non to the- issue of the order of settlement. in his favour.
Respondent No. 1 made this deposit on 3-5-1976 and
inforrr.ed the Government.
Ho\vever, taking a . favourable view of the representations made by the appellant society on Febn1ary 18, 1976 and :h.Iarch
9, 1976 to its Revenue 1Iinister and the
Chief 1-Iinister
respectively,
the
F
Government of Bihar changed its mind and settled the fishery rights \VitR.
the appellant, vide its letter No. IO/S.-4032176-1976, dated June 29, 1976,
on condition of the deposit by the latter of Rs. 1,65,000/- plus the earlier
arrears of Rs. 58,868/-, in three equal instalments; the first instalment to be
deposited before takirig the settlement and within a week from that date. It
\\-'as also made clear that in case the appellant failed to make the deposit
aforesaid the settlement be issued by highest bid.
On June 30, 1976. when
re~;oond~nt No. 1 went to obtain the "dakhil parwana", he was informed of
G
this subsequent decision
of the - State
Governn1ent.
Respondent - No.
1
challenged the said orders by filing a writ - petition under Art 226 of the
Constitution. Though the High
Court of Bihar found that
there "'as no
binding or enforceable contract between respondent No. 1 and the State Government, it allowed the "'rit
petition relying on the
doctrine of
promissory
estoppel.
AIIov.rjng the nppeal by special leave, the Court,
HEID : ( 1) It is no doubt true \hat the year 197 6· 77 has run out and
H
the State has not~preferred any appeal against the adverse decision of the High
Court but ~?nee it has been impleaded as a respondent to the present appeal
and in Clctivtly supporting the appellant Y.-ho was indispu!ab1y in po~session and __ _
A
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376
SUPREME COURT REP.ORTS
(l9?8J 1 S.C.R.
enjoyment of the Jalkar at the commencement of the proceedings under Article
226 of the Constitution and lost the same as a result of the judgment and
• -1.
order of the High Court and the appellant could not effectively pursue the
application for the
lease for the year 1977-78 and the reversal of the judg·
ment and order of the High Court which proceeds on grounds common to the
appellant and the respondents 2 to 4 can be
made in favour of respondent
No. 1 to meet the ends of justice under Order XU Rules 4 and 33 of the Code
of Civil Procedure and the State Government might have been prevented from,
settling the Jalkar in favour of the appellant because of the mandatory injunc·
tion granted by the High Court. The appellant, is vitally interested in
the
matter and is entitled to maintain and continue to prosecute the appeal and
to show that the writ of niandan1us issued by the High Court is unsustainable
in law. [380 E-G]
(2) The pro\ision5' of Article 299 of the Constitution which are
mandatory in chara.cte1
require that a contract made in the exercise
of the executive power of
the
Union or
of a
State must satist'y
there conditions namely,
(i)
it must be expressly made by the President
or by the Governor of the State as
the case
may be; (ii)
it must
be executed on behalf of the President or the Governor as the case may be;
and (iii) its execution must be by such person and in such manner as
the
President or Governor may direct or otherwise. Failure to comply with these
conditions nullifies the contract and renders it void and unenforceable.
[380 H, 381 A, D-EJ
In the instant case, the settlement of the Jalkar with respondent No. 1
was not made and executed in the manner prescribed by Article 299 of the
Constitution. Accordingly, it could not be said to be valid and binding on
State.
Respondent No. 1 could not base his claim thereon.
The State of Bilwr v. M /s. Karam Chand Thapar & Brothers Ud. [1962]
1 S.C.R. 827; Seth Bikhraj Jaipuria v. Union of lridia [1962] 2 S.C.R .. 880;
State of West Bengal v. Mis. B. K. Monda/ & Sons [1962] Supp. 1 S.C.R. 876
and Mulamchand v. State of Madhya Pradesh [1968] 3 S.C.R. 214 applied.
(3) The right to catch and carry away the fish being a 'profit a prendre'
and as such an immovable property within the meaning of the Transfer of
Property Act read in the light of s. 3 (26) of Genera? Clauses Act, its grant
has to be by means of a registered instrument if it is a tangible immovable
property exceeding in value of R-.. 100/- under s. 54 of the Transfer of Property Act and if it is intangible whatever its value. The transaction of sale
of the right to catch and carry away the fish if not effected by means of a
registered instrument would pass no title or interest.
User of the term 'lease~
would not make any difference because a lease of fishery which is immoveable property, as defined in s. 2(6) of the Registration Act, if it i~ for any
term excee"ing one year or reserves a yearly rent has also to be registered as
required by s. 17(l)(d) of the Registration Act 1908 and section 104 of the
Transfer of Property Act.
In the instant case the transfer of the 'profit a prendre' in favour of respondent No. 1 was admittedly for two years reserving a yearly rent and was
not evidenced by a registen"d instlument.
He had therefore no right, title or
interest which could be enforced by him.
[381 E-H, 382 Bl
Ananda Behera & A nr. v. The State of Orissa & Anr. [1955] 2 SCR 919
followed.
( 4) There cannot be any estoppcl against the Government in exercise of
its sovereign legislative and executive functions.
The instant case is not one where respondent No. 1 could invoke the dcctrine of promissory estoppel particularly in view of the fact that he neither
deposited Rs. 3,713/- required for execution of the lease agreement nor v.1as
any parwana issued to him. [382 F, G]
Excise Con1missioner, U.P .. Allahabad etc. etc. v. Ram Kumar etc. etc.
A.J.R. 1976 S.C. 2237, applied.
....
-(
~
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,
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..
'
:BIHAR FISHERMEN SOCIETY v. SIPAH! SINGH (laswant Singh, J.) 377
Union of India & Ors. v. Mis. Afghan Agencies Ltd. [1968] 2 S.C.R. 366,
A
distinguished.
(5) The chief function of a writ is to compel the perforn1ance of public
duties prescribed by statute and to keep subordinate tribunals and officers exercising public function within the Jimit of their
jurisrliction. In order
that
1na11dan1us may issue to compel the parties to do somethin,g, it must be shown
that there is a statute which imposes a legal duty and the aggrieved party has
a legal right under the statute to enforce its performance.
In the instant case respondent No. 1 was not entitled to apply for grant
of a writ of n1andan1us under Article 226 of the· Constitution and the High
<Court was not competent to issue the same when it has not been shown that
there is any statute or rule having the force of la¥.' which casts a duty on the
respondents 2 to 4 which they fail to perform. [383 C-F]
Lekhra; Satra111das, Lafi'ani v. Dy. Custodian-cu1n-Managing Officer & Ors.
fl966] l S.C.R. 120; Dr. Rai Si1•endra Bahadur v.
Tiu~ Govf'rninK Body of
B
the !Valanda College [1962] Supp. 2 S.C.R. 144 and Dr. U111akant Saran v,
C
.State of Bihar & Ors. A.I.R. 1973 S.C. 964, referred to.
(6) It is within the competence of the Government to give preference to
a Fishermen Co-operative Society and to settle the J alkar according to the
.revised policy and procedure forn1ulate<l by it in exercise of its absolute
authority and incorporated in its circular dated April 18, 1974.
Respondent
No. 1 is entitled to refund on the basis of s. 70 of the Contract Act, proportionate grant of the Jarnma deposited by him for the year
1977-78 for the
period commencing from May I, I977 to 30th August I977. [384 A-G]
D
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1478 of
1~76.
Appeal by Special Leave from the Judgm.'.'nt and Order dated
20-8-76 of the Patna High Court in Civil Writ Jurisdiction Case No
1463/76.
D. V. Patel, Miss B. Ram Rakhianl and S. K. Gambhir for the
Appellant.
Lal Narain Sinha and Yogeshwar Prasad, Rani Arora and Merra
Bail, for Respondent No. I.
D. Goburdhan for Reaspondent Nos. 2 and. 3 and 4.
E
The Judgment of the Court was delivered by
F
JASWANT SINGH, J.-This appeal by special leave is
directed
against the judgment and order dated August 20, 1976, of the High
Court of Judicature at Patna in Civil Writ Judicial Case No. 1463 of
1976 (filed by respondent No. 1) restraining the appellant and respondents 2 to 4 herein from acting on the basis of letter No. I O-S4032176-1976 R dated June 29, 1976 addressed by the Department
G
of Revenue. and Land Reforms, Government of Bihar, to the Deputy
Commissioner, _Santhal Pargana, Dumka (which formed Annexure-4
to the aforesaid writ petition) and directing respondent No. 2
to
execute the lease of the fishery rights in question in favour of respondent No. 1 and to put him in possession thereof, if not already
<lone.
The facts and circumstances giving rise to this appeal are : The
H
appellant which is a co-operative society commenced taking settlement
of Gangapath Islampur Jalkar, bearing Tauzi No. 614 (hereinafter
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SUPREME COURT REPORTS
[l 978J 1 S.C.R ..
referred to as the 'Jalkar') immediately after its establishment and
registration in 1950 (A. D.)
The fishery rights in the Jalkar which
were settled with the appellant for the year 1974-75 as theretofore
was to run from July 1, 1974, to the end of June, 1975 at the Jamma
of Rs. 1,50,0001-. At the end of the said year, it was discovered that
the appellant had defaulted in payment of the Jamma to the extent of
Rs. 66,869/-.
The settlement of fishery rights in the Jalkar for the
period commencing from July 1, 1975 to June 30, 1976 was
made
in favour of respondent No. 1
by respondent No. 2 through its
Revenue Department as a result of the public auction at which the
former offered the highest bid of Rs. 1,65,000/-.
In
February,
1976, respondent No. 1 made a repre~ntation to the
Revenue
Department of the Government of Bihar praying for a remission
of
Rs. 75,000/- in the amount at which the settlement had been made
in his favour on the. ground that he had suffered a heavy loss during
the aforesaid period of settlement as a result of the unlawful activities of the members of the appellant society.
In the alternative, he·
prayed that in case the State Government was not in a position
to
grant the remission, the settlement of fishery rights of the Jalkar be
continued with him for a further period of three years at the same
amount in order to enable him to recoup the aforesaid loss suffered
by him.
After some inquiry and consideration of the matter, the
Revenue Department of the Government of Bihar ordered that the
settlement of the Jalkar should continue with respondent No. 1 for
the years 1976-77 and 1977-78 at Rs. 1,65,000/- per year.
The
Government, however, made the deposit of the settlement fee
of
Rs. 1,65,000/- by respondent No. 1 a sine qua non to the issue of
the order of settlement.
An intimation of this order was given by
the Government to its Deputy Commissioner, Santhal Pargana, Dwnka,
vide its, latter No. 10-S-4032176R dated April 30, 1976,
forming
Annexure-1 to the writ petition. A copy of this communication was
also sent to respondent No. 1 with the direction that he should deposit
Rs. 1,65,000/- before the issue of the settlement order for
the
aforesaid two years.
In compliance with this order, respondent No ..
1 deposited a sum of Rs. 1,65,000/- on May 3, 1976, vide challan
No. 18(Bank) dated May 3, 1976 and by his letter of the even date,
he requested the Sub-Divisional Officer, Sahibganj, to issue the Patta
of settlement of the Jalkar for the years 1976-77 and 1977-78 in his
favour.
Respondent No. 1 also communicated the fact of the deposit
by him of Rs. 1,65,000/- to the Secretary to the Government of
Bihar, Revenue Department, by telegram dated May 5, 1976. However. taking a favourable V!iew of the representations made by
the
appellant on February 18, 1976 and March 9, 1976 to its Revenue
Minister and the Chief Minister respectively, the Government
of
Bihar changed its mind and informed the Deputy Commissioner
of
Santhal Paragana, Dumka vide its letter No. 10/S-4032/76-1976-R
dated June 29, 1976 that it had "taken the decision that settlem,,nt of
the aforesaid Jalkar with the Society (i.e. the appellant) be. done for
the year 1976-77 on the additional conditions (besides those laid down
by the prescribed rules and conditions) that it would make the de~
posit of all earlier arrears of Rs. 58,868/- along with the amount of
settlement of Rs. 1,65,000/- for this year (i.e 1976-77) in three
equal instalments, the first instalment to be deposited before taking
-
'
'
I,
Bl!IAR FISHERMEN SOCIETY v. SIPAII! SINGH (Jaswant Singh, J.)3 79
the settlement" and within a week from that date.
It was made clear
in the concluding part of the communication that in case the appellant failed to make the deposit as aforesaid, 'the settlement
be
issued by highest bid.'
On JuneJ 30, 1976, when respondent
No.
1 went to obtain the 'dakhil
parwana', he is stated to have been
informed of this subsequent decision of the State Government. Averring that he had been put to a consid~rable financial loss as a result
of the aforesaid subsequent order of the Government settlmg the fishery
rights in Jalkar in favour of the appe!lant, respondent No. I filed
a
petition under Article 226 of the Constitution in the High Court of
Judicature at Patna on July 2, 1976 praying that the aforesaid order
settling the fishery rights of the Jalkar with the appellant be quashed
by a writ of certiorari and the State Government be directed
by a
writ of mandamus to execute the lease in his favour for the
years
1976-77 and 1977-78 and not to disturb his possession over the fishery
right in question during the currency of the term of the lease.
The
respondent also prayed for such other orders, as the Court
might
think fit and proper.
The writ petition was contested by the appellant as also by respondents Nos. 2 to 4 herein.
In the counter affidavit jointly filed by
them in opposition to the petition, respondents Nos. 2 to 4 averred
imcr a/ia that there was no completed contract and hence no formal
agreement was executed between the State, and respondent
No. I
and no 'parwana' was issued in favour of the latter; that the
State
had full right and authority to revoke its decision before execution of
· the agreement and that in view of the well established principles, 'the
settlement of the Jalkar had to be given to the appellant if it
was
willing to take the lease'.
The respondents also denied their liability
for the expenses alleged to have been incurred by respondent
No.
1 in connection with the preparation for the lease ordered in his favour
by the Government vide the aforesaid Annexure-1 to the writ petition.
They, however, admitted that the appellant indulged in unlawful activities for four days in 1975-76 which had caused a meagre loss to
respondent No. 1.
In the counter affidavit filed by it. the appeJlant
while denying that it was a defaulter, averred that its petition
for
remission was pending before the Remission Committe•e appointed
by the State; that the Assistant Registrar and the Registrar of the Cooperative Societies had recommended the settlement of fishery rights
of the Jalkar in its favour and on representations made by it to the
Revenue Minister and the Chief Minister, the G0\1Crnment of Bihar
had, in conformity with mandatory orders and instructions,
issued
an order of settlement in its favour on June 28, 1976; that pursuant
to that order, it made the necessary deposit by 10.35 A.M. on July
1. 1976 and that respondent No. 1 had no right to challenge the settlement of the fishery rights of the Jalkar in its favour.
The. High Court while holding that there was no binding
or
enforceable contract between respondent No. 1 and the State Government allowed the writ petition relying on the doctrine of· promissory
estoppel.
Aggrieved by this judgment and order, the appellant has.
as already stated, come up in appeal to this Court.
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380
SUPREME COURT REPORTS
[1978) 1 S.C.R.
Appearing on behal•( of the appellant, Mr. Patel has urged
the
following points :-
1. That since there was no completed, binding and enforceable contract between the State of Bihar and respondent No. l as contemplated by Article 299 of
the
Constitution, the aforesaid writ petition filed
by
respondent No. I was not maintainable.
~ That to a case like the present one, the doctrine
of
promissory estoppel had no application and the High
Court has erred in relying upon the same.
3. That in any case, since there was no breach of any
statutory duty in the present case, a writ of mandamus
could not have been issued by the High Court.
Mr. Lalnaryan Sinha has, on the other hand, submitted' that in
the facts and circumstances of the case, the High Court was justified
in applying the principle 9f promissory estoppel and there is
no
warrant for interfering with the judgment and order passed by the
· High Court.
We shall deal seriatim with the aforesaid three contentions raised
on behalf on the appellant
But before attempting to do• that, we
would like to dispose of the preliminary objection raised on behalf
of respondent No. 1 to the effect that as the period for which
the
impugned order dated June 29, 1976 settling the Jalkar with the
appellant was issued has expired and the State has not chosen
to
prefer any appeal against the aforesaid judgment and order of
the
High Court the appellant has no manner of right or locus standi to
chal'lenge the continuance of settlement with respondent
No. 1 for
the year 1977-78 and to continue to prosecute the present appeal. It
is no doubt true that the year 1976-77 has run out and the
State
has not preferred any appeal against the adverse decision of the High
Court but since it has been impleaded as a respondent to the present
appeal and is actively supporting the appellant who was indisputably
in possession and enjoyment of the Jalkar at the commencement of
the proceedings under Article 226 of the Constitution and Jost
the
same as a result of the judgment and order of the High Court and the
appellant could not effectively pursue the application for the lease
for the year 1977-78 and the reversal of the judgment and order of
the High Court which proceeds on grounds common to the appellant
and respondents 2 to 4 can be made in favour of respondent
No. 2
to meet the ends of justice und_er Order 41 Rules 4 and 33 of the Code
of Civil Procedure and the State Government might have been prevented Jrom settling the Jalkar in favour of the appellant because of
the mandatory injunction granted by the High Court, the appellant
is, in our judgment, vitally interested in the matter and is entitled to
maintain and continue to prosecute the appeal and to show that the
writ of mandamus issued by the High Court is unsustainable in law.
We accordingly overrule the preliminary objection and proceed
to
consider the aforesaid contentions raised on behalf of the appellant.
H
Re : Contention No. 1 :-It is now well settled that the provisions
of Article 299 of the Constitution which are mandatory in character
require that a contract made in the exercise of the executive power of
I .
BIHAR FISHERMEN SOCIETY v. SIPAH! SINGH (laswant Singh, l.) 381
the Union or of a State must satisfy three conditions viz. (i) it must
A
be expressed to be made by the President or by the Governor
of
the State, as the case may be; (ii) it must be executed on behalf of
the President or the Governor, as the case may be and (iii) its execution must be by such person and in such manner as the President or
Governor may direct or authorise.
Failure to comply with
these
conditions nullifies the contract and renders it void and unenforceable.
(See decisions of this Court in The State of Bihar '1.
Mis Karam
B
Chand Thapar & Brothers Ltd.(') Seth Bikhraj laipuria v. Union of
India(2) and State of West Bengal v. M/s. B. K. Monda! & Sons. (')
It will also be useful to refer to the Judgment of this Court in
Mulamclumd v. State of Madhya Pradesh( 4 ) where while reiterating
the principles laid down in the aforesaid decisions, it was observed :
"There is no question of estoppel or ratification in a
case where there
is
contravention of the provisions
of
Article 299 (1) of the Constitution.
The reason is that the
provisions of section 175(3) of the Government of India Act
and the corresponding provisions of Art. 299 (1)
of the
Constitution have not been enacted for the sake of mere
form but they have been enacted for safeguarding the Government against unauthorised contracts.
The provisions
are embodied ins. 175(3) of the Government of India Act
and Art. 299 ( 1) of the Constitution on the ground of public
policy-on the ground of protection of gene;ral public .....
and these formalities cannot be waived or dispensed with."
In the instant case, it is obvious that the settlement of the Jalkarwith respondent No. 1 was not made and executed in the manner
prescribed by Article 299 of the Constitution.
Accordingly,
it
could not Ile said to be valid and binding on the State of Bihar and
respondent No. 1 could not base his claim thereon.
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That apart, there is an additional reason for holding that the settlement of Jalkar with respondent No. 1 was not valid and enforceable.
Thi: right to catch and carry away the fish being a 'profit a
prendre' i.e. a profit or benefit arising out of the land, it has
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to be regarded as immovable property within the meaning of
the
Transfer of
Property Act,
read in the light of s.
3 (26) of the
General Clauses Act. If a 'profit a prendre' is tangible immovable
· property, its sale has to be by means of a registered instrument
in case its value exceeds Rs. 100/- because of sei:tion 54 of
the
Transfer of Property Act. If it is intangible, its sale is required to
be effected by a registered instrnment whatever its value. Therefore,
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in either of the wo situations, the grant of tl1e 'profit a prendre' has
to be by means of a registered instrument.
Accordingly, . the
transaction of sale of the right to catch and carry away the fish if not
effected by means of a registered instrument, would pass no ~tie or
interns!.
(See Ananda Behera & Anr. v. The State of Orzssa &
(I) [1962J 1 s.c.R. 827.
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(2) [196212 S.C.R. 880.
(3) [19621 Supp, I s.C.R. 876.
(4) [1968] l S.C.R. 214.
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382
SUPREME COURT REPORTS
[J 978] J S.C.R.
Anr. (')
Even if the settlement of Jalkar with respondent No. 1 is
regarded as lease as described by him in Annexure-2 to the writ petition, it would not make any difference because a lease of fishery which
is immovable property as defined by >ection 2(6) of the Registration Act if it is for any term exceeding one year or reserves a yearly
rent has also to be registered as required by section 1 7 (I) ( d)
of
the Indian Registration Act, 1908 and •ection 107 of the Transfer
of Property Act.
As in the instant ca•e, the transfer of the 'profit a
prendre' in favour of respandent No. 1 wa~ admittedly for two years
reserving a yearly rent and was not evidenced by a registered instrument, he had no right, title or interest which could be enforced
by
him.
Manifestly therefore, the writ petition was misconceived and
ought to have been dismissed.
Re : Contentlon No. 2 : It is also not a case where respandent
No. I could invoke the doctrine of promissory estoppel particularly
in view of the fact that he neither deposited Rs. 3,713/- (Rupees
three thousand, seven hundred and thirteen only) required
for execution of the lease agreement nor was any 'Parwana' issued to him
ll.nd the High Court rejected his plea that after the receipt of
the
Goven;ment order, he invested large amounts of money in purchasing
boats etc. and had to enter into contracts with large number
of
employees whose se.rvices were needed for the Jalkar. It would be
appropriate to refer to the following observations of the High Court
in this respect :-
"The statement referred to above is such too vague and
gen~ral.
No details or particulars have been given, nor
any document annexed to the original writ application, or
the rejoinder aforesaid in suppart of these averments.
I,
therefore, do not accept the correctness of the
statements.
However, it was very unlikely that the petitioner \vho had
already a subsisting lease would not be having enough
or
sufficient materials and it was after the communication regarding lease for the period 1976 to 1978 that the petitioner
started purchasing boats etc.
The vague and general statements that have been made in paragraph 17 of the original
writ application do not appear to me to 'be acceptable."
The doctrine of promissory estoppel could also not be pressed
into service in the present case, as it is well settled that there cannot be any estoppel against the Government in exercise of its sovereign
legislative and executive functions.
(See Excise
Co1nmissio11er,
U.P., Allahabad etc. etc. v. Ram Kumar etc. etc.(')
The decision of this Court in Union of India & Drs. v. Mis lndoAfghan Agencies Ltd. (3 ) on
which 5trong reliance is placed
by
counsel for respondent No. 1 is clearly distinguishable.
In that case,
unlike the present one, the respondents were not seeking to enforce
any contrac.tual right.
They were merely seeking to enforce compli-
(I) [195512S.C.R. 919.
(2) A.LR. 1976 S.C. 2237.
(3) [19681 2 S.C.R. 366.
llJHAR FISHERMEN SOCIETY v. SJPAHI SINGH (Jaswant Singh, J.) 383
.ance with the obligation which was laid upon the Textile Commissioner
by the terms of the Export Promotion Scheme providing for grant
(by way of incentives to exporters of woollen textiles and goods) of
Entitlement Certificate to import raw materials of a total
amount.
equal to I 00'.l'o of the F.O.B. value of their exports.
Their claim
was founded upon the equity which arose in their favour as a
result of the representation made on. behalf of the Government in the
aforesaid Scheme, the exports of woollen goods made by them Lo
Afghanistan acting upon the representation and curtailment of
the
import Entitlement by the Textile Commissioner without notice
to
them.
Re : Contenion No. 3 :-This contention is also well founded and
must prcva.il.
There is abundant authority in favour of the proposision that a writ of mandamus can be granted only in a case where
there is a statutory duty imposed upon the officer concerned
and
t11ere is a failure on the part of that officer to discharge the statutory
obligation.
The chief function of a writ is to compel performance
of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of
their jurisdiction. It follows, therefore, that in order that mandamus
may issue to compel the authorities to do 'something, it must be shown
that there is a statute which imposes a legal duty and the aggrieved
party has a legal right under the statute to enforce its performance.
(See Lekhraj Satramdas, Lalvani v. Deputy Custodia11-cum-managi11g
Officer & Ors.(') Dr. Rai Shivendra Bahadur v. The Governing Body
of the Nalanda College(') and Dr. Umakant Saran v. State of Bihar &
Ors.(') In the instant case, it has not been shown by respondent No.
1 that there is any statute or rule having the force of law which casts a
duty on respondents 2 to 4 which they failed to perform.
All that is
sought to be enforced is an obligation flowing from a contract which,
as already indicated, is also not binding and enforceable,
Accordingly, we are clearly of the opinion that respondent No. I was not
entitled to apply for grant of a writ of mandamus under Article 226
of the Constitution and the High Court was not competent to issue the
same.
This brings us to the consideration of the last question of the
relief which can be granted to the appellant.
The settlement of Jalkar
with respondent No. 1 undoubtedly did not create any legal right in
his favour but as the year 1976-77 has already run out, the appeal in
so far as that year is concerned has become infructuous but in so far
as the appeal relates to the year 1977-78, we are of the opinion that
as respondent No. 1 is not validly exploiting th0 Jalkar and the application by the appellant for settlement thereof with it is pending with the
authorities and according to the revised policy and procedure formulated by it in exercise of its absolute authority and incorporated in its
Revenue and Land Reforms Department's circular letter No. S. 8 Serial
(1) [1966] I S.C.R. 120.
(Z) [l 962] Supp. 2 S.C.R. 144 .
.(3) A.l.R. )973 S.C. 964.
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SUPREME COURT REPORTS
[1978] 1' S.C.R.
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6-0-4663R dated April 18, 1974, addressed to all the Collectors of the
State, it is within the competence of the Government to give. preference
to a Fishermen Co-operative Society and to settle the Jalkar with the
appellant for the remainder of the year 1977-78 at 90% of the highest
bid amount i.e. 10% less of .the highest auction amount but it may
not be possible for it to do so in .... face of the impediment created by
the mandamus issued by the High Court, we would allow the appeal
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in so far as the current year is concerned and leave it open to the
Government to grant the fishery rights to the appellant in conformity
with the aforesaid policy· and procedure in case the latter fulfills the
conditions laid down therein.
In the event of the Government settling the Jalkar with the appellant or any other Fisherman· Society in
accordance with the policy and procedure laid down in the aforesaid
circular letter, it shall, on the basis of section 70 of the Contract Act
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rdund to respondent No. 1 proportionate amount of the Jamma deposited by him for the year 1977-78 after going into the accounts which he
was bound to maintain under order passed by this Court on May 6,
1977 for the period commencing from May !, 1977 to August 30,
1977.
In the. circumstances of the case, there will be no order as to costs.
S.R.
Appeal allowed.