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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 estopped. Aggrieved by this judgment and order, the appellant has as already stated, come up in appeal to this Court.

Appearing on behalf, 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. 1 as contemplated by Article 299 of the Constitution, the aforesaid writ petition filed by respondent No. 1 was not maintainable.

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 the Union or of a State must satisfy three conditions viz.

(i) it must be expressed tobe made by the President or by the Governor of the State, as thecase may be;

(ii) it must be executed on behalf of the President orthe Governor, as the case may be and (iii) its execution must be bysuch 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 O. M/s Karam Chand Thapar & Brothers Ltd.(1) Seth Bikhraj Jaipuria v. Union of India ( 2 ) and State of West Bengal v. M/s. B. K. Mondal & Sons. (3) It will also be useful to refer to the Judgment of this Court in Mulamchand 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 in s. 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 general public .... and these formalities cannot be waived or dispensed with."

In the instant case, it is obvious that 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 the State of Bihar and respondent No. 1 could not base his claim thereon.

That apart, there is an additional reason for holding that the settlement of Jalkar 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, it has 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 section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by, a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the '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. (See Ananda Behera & Anr. v. The State of Orissa & (1) [1962] 1 S.C.R. 827.