K. P. Singh, J. - (1.) BY means of this writ petition the petitioner has prayed for quashing the order cancelling the lease in favour of the petitioner and also for commanding the respondents not to interfere with the possession of the petitioner over the tank.
(2.) THE petitioner claimed right in the tank on the basis of an agreement contained in Annexure 2 attached with the writ petition which is dated 21-11-1988. According to the petitioner his lease has been cancelled by a non-speaking order and without assigning any reason and that the petitioner has no other alternative remedy. The claim of the petitioner has been contested by the opposite party no. 2 on the ground that the lease deed dated 21-11- 1988 contained in Annexure-2 attached with the writ petition required registration and since the documents is not a registered one, no valid title passed to the petitioner and the writ petition deserve to be dismissed. The second main ground attacking the claim of the petitioner is to the effect that members of the Town Area committee as well as Chairman of the town area were elected on 12-11-1988 and they took oath of office on 26-11-1988. The petitioner obtained lease on 21-11-1988 which would be operative from 1-4-1989, therefore, the petitioner had not moved fairly and reasonably in obtaining the lease in his favour and the conduct of the petitioner is such that he does not deserve to be heard by this Court in the exercise of powers under Article 226 of the constitution It was also contended that the lease in favour of the petitioner is not in consonance with the Notification dated 15-5-1987, therefore, no right accrued to the petitioner. Relevant allegations regarding fraudulent transaction and illegality of the document relied upon by the petitioner have been made in paragraphs 6 and 8 of the counter-affidavit.
(3.) AFTER hearing the learned counsel for the petitioner we are not satisfied that the petitioner can get the reliefs claimed in this writ petition. One of the questions raised before us is whether the petitioner gets any right on the basis of the agreement contained in Annexure 2 attached with the writ petition which is not a registered document. In this connection it is necessary to mention the ruling reported in AIR 1977 SC 2149 wherein their Lordships of the Supreme Court have indicated vide para 11 as below : "That apart, there is an additional reason for holding that the settlement ofJalkar with respondent no. 1 was not valid and enforceable. The right to catch and carry away the fish being a profit a prendre i.e. a profit or benefit arising out of the land- The Bihar Eastern Gangetic Fiehermen Co-operative Society Ltd. v. Sipahi Singh, 1 it has to be regarded as immovable property within the meaning of the transfer of property Act read in the light of section 3 (26) of the General Clauses Act. If a profit a prendre' is gangible immoveable property, its sale has to be by means of a registered instrument in case its value exceeds Rs. 100/- because of section 54 of the Transfer of property Act. If it is intangible, its sale is required to be effected by a registered instrument what ever its value. Therefore, in either of the two situations, the grant of 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 title or interest. Even if the*settlement of Jalkar with respondent no. 1 is regarded as a 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 section 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 17 (1) (d) of the Transfer of property Act. As 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 registered instrument, be 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." In the light of the above observations we also arrive at the conclusion that the present writ petition is misconceived and deserves to be dismissed. The bare reading of Annexure II attached with the writ petition indicates that the document is a lease for a period of 10 years Therefore, in our opinion, it required registration and the document being unregistered one, does not confer any right, title or interest upon the petitioner;