Full Judgment Text
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PETITIONER:
M/S. ANWAR KHAN MEHBOOB & CO.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH AND OTHERS
DATE OF JUDGMENT:
06/10/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 1637 1966 SCR (2) 40
CITATOR INFO :
RF 1986 SC 63 (25)
RF 1986 SC1085 (15)
ACT:
Constitution of India, Art. 32-Earlier decision-when res-
judicata Right, to pluck tendu leaves-It Property.
Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam,
1964 (M.P. Act 29 of 1964.)
HEADNOTE:
The petitioner firm had obtained from the proprietor of an
Estate in Madhya Pradesh the right to pluck and carry tendu
leaves from trees in certain villages. The right was to
endure for a period of twenty-five years from 1948 to 1973.
In 1950, the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals and Alienated Lands) Act was passed which
vested in the State all rights, title and interest vesting
in the proprietor or any person having interest in such
proprietary right in areas to which the Act was extended.
When the petitioner and others were obstructed in plucking
tendu leaves, they had approached this Court under Art. 32
of the Constitution to enforce what they claimed as their
"fundamental right to property". A Division Bench of this
Court in Chhotabhai Jethabhai v. State of Madhya Pradesh
[1953] 3 S.C.R. 476., issued a writ prohibiting the State
form interfering with those rights on the ground that
contracts and agreements such as the one held by the
petitioner-firm in essence and effect licences and that
there was nothing in the Abolition Act to affect their
validity or to extinguish such rights. Subsequent to ibis
decision,. in 1964, the Madhya Pradesh Tendu Patta (Vyapar
Viniyaman Adhiniyam was passed, the object of which was to
create a State monopoly in the trade of tendu leaves
restricting its purchase or transport. When the petitioner
firm was informed that the right to collect tendu leaves was
abrogated by the State Government under the Adhiniyam, it
approached this Court under Art. 32 of the Constitution. In
support of the Petition, it was contended that (i) the
petitioner was seeking to enforce the same "fundamental case
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and as such this decision had a binding effect as res
judicata, and (ii) the Adhiniyam did not touch the rights of
the petitioner as recognised and enforced by this Court in
Chhotabhai Jethibhai’s case and that it did not attempt to
nullify that decision expressly or even indirectly.
HELD: The petition must fail.
(i) Chhotabhai’s case does not operate as res judicata even
if it might have been assumed in that case that a right to
property was involved. Subsequent decisions of this Court
have- laid down that the decision in Chhotabhai’s case which
treated the agreements as bare licences and yet considered
that a fundamental right-to property as conferred by them
was apparently, given per incurious and could not therefore
be followed." A right to contract is not a right to property
and Chhotabhai’s case cannot be understood to have treated
it as such. It was possible that the Divisional Bench.
which decided that case thought in terms of property in
leaves etc., on their being severed from earth as existing.
even before these were severed. This was not the true
position in law because the agreements then considered
betokened a licence coupled with a grant. The attention
41
of the Divisional Bench was not directed lo this difference.
[47 C; 48 B-C; 49 F-G]
The plea of res judicata must also fail because the two
causes of action are not alike. In Chhotabhai the cause of
action was based on the invasion of rights under the
authority of the Abolition Act. Now, the invasion is and
under the authority of the Adhiniyam. [48 G-H; 49 E]
If a statute creates new circumstances which render the
earlier decision. inapplicable, the effect must be to avoid
-the earlier decision of the Court. [50 B-C]
(ii) It cannot be said either by reason of any rule of res
judicata or on analogy that the petitioner is entitled to
invoke Art. 32 when it possesses no right of property in the
leaves. Since there is no right to property before the
leaves are plucked no such right can be said to be invaded
by the Adhiniyam. The petitioner had only a contract in its
favour and that is not a right of property. [52 C-D]
Case law referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 38 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
G. S. Pathak, P. R. Naolekar, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the petitioner.
C. K. Daphtary, Attorney-General, B. Sen, M. N. Shroff,
and I. N. Shroff, for the respondents Nos. 1 to 4.
The Judgment of the Court was delivered by
Hidayatullah, J. The petitioner is a partnership firm which
manufactures and sells, bidis, under the name and style of
Anwarkhan Mehboob and Co., Jabalpur. In 1948 the petitioner
firm, with a view to securing a supply of tendu leaves over
the years acquired for a term of 25 years, the right to
pluck and carry away tendu leaves from plants in ninety-nine
villages in the former Imlai Estate from the Malguzar Raja
Raghuraj Singh. The period of 25 years was to run from 1948
to 1973. The document, which was not registered (annexure
I), was executed by the Raja on August 22, 1948. It is a
very brief document and all that it says is that tendu
leaves in 99 villages have been "sold" for 25 years for a
consideration of Rs. 9,000 per year which must be paid after
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each tendu leaf crop is over but before the expiry of three
months, that only the leaves should be plucked and that no
bushes should be cut down.
In 1950 the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals and Alienated Lands) Act (No. 1 of 1951)
was passed. Under the Act (,which may be briefly called the
Abolition Act) all rights,. title and interest vesting in
the proprietor or any person having interest in such
proprietary right through the pro-
42
prietor, in an area to which the Abolition Act was extended
including land (cultivable or barren), grass land, scrub-
jungle forest, trees etc., ceased and vested in the State
for purposes of State, free from all encumbrances. The
Government of Madhya Pradesh obstructed the persons who held
contracts for tendu leaves Jac, wood, timber or other
forest produce, including the petitioner firm, The
petitioner firm and many others petitioned to this ’Court
under Art. 32 of the Constitution to enforce what they des-
cribed as ’fundamental rights to property, and asked for
writs or orders to restrain the State Government from
enforcing the Abolition Act generally and in particular so
as to interfere with the right of the petitioner firm to
pick, gather and carry away the kind of forest produce for
which they held agreements. A dozen such petitions were
heard together, that of the petitioner being W. P. No. 309
of 1951 (Firm Anwar Khan Mehboob & Co. v. State of Madhya
Pradesh), and were decided on December 23, 1952. The main
judgment of this Court was pronounced in a petition filed by
one Chhotabhai Jethabhai and is reported in Chhotabhai
Jethabhai v. State of Madhya Pradesh(1). A Divisional Bench
of this Court held that contracts and agreements, such as
the one held by the petitioner firm, were "in essence and
effect licenses granted to the transferees to cut, gather
and carry away, the produce in the shape of tends leaves,
lac, or timber or wood." Holding further that there was
nothing in the Abolition Act to affect their validity or to
extinguish such rights in favour of the State, the
Divisional Bench ruled that the State had no right to
interfere with the rights under the contracts and
agreements. A "writ of prohibition" was issued, prohibiting
the State "from interfering in any manner whatsoever with
the enjoyment of those rights". In cases where the periods
under the contracts had expired or where the proprietors had
still to recover anything from transferees after the date of
vestinG the State was held entitled "to assert and enforce
its rights standing in the shoes of the proprietors."
The petitioner firm, in common with the other petitioners,
on that occasion obtained a "writ of prohibition" also. It
would have enjoyed the fruits of its agreement with the Raja
till the year 1973 but other events followed. In 1964 the
Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam,
1964 (29 of 1964), (conveniently called the Adhiniyam) was
passed, as the preamble openly professes "to make provision
for regulating in the public interest the trade of Tendu
leaves by creation of State
(1) [1953] S. C. R. 476
43
monopoly in such trade. " The Adhiniyam conferred power on
the State Government to divide specified arm into units, to
appoint its own agents for‘ purchase and trade in tendu
leaves, to set up advisory committees especially for the
fixation of prices at which Government would purchase tendu
leaves from growers of tendu leaves other than Government,
to open depots and to purchase there tendu leaves at prices
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in the lists exhibited there. The Adhiniyam also required
growers of tendu leaves, the manufacturers of bidis and
exporters of tendu leaves to register. With a view to
creating monopoly in favour of Government section 5 of the
Adhiniyam imposed a complete restriction on purchase and
transport of tendu leaves contrary to the provisions of the
Adhiniyam and contravention of any provision was made
punishable with imprisonment or fine and power was also
given to forfeit the whole or any part of tendu leaves in
respect of which there was contravention. A power of entry,
search and seizure was conferred on police officers of the
rank of Assistant Sub-Inspectors and above.
We have given a resume of the provisions of the Adhiniyam
but we must set out s. 5, because it is the heart of the
Adhiniyam and also of the problem before us. Before we do
so., a few definitions material to its construction and
understanding may be noted "An agent" in the Adhiniyam means
the agent of Government and "a grower of tendu leave" means
in respect of leaves grown:
(a)in a reserved or protected forest, or on
unoccupied land as defined in the Madhya
Pradesh Land Revenue Code 1959, the State
Government;
(b) on lands with the Bhoodan holder or the
Bhoodan tenant or lessee or grantee under
certain Madhya Pradesh, Madhya Bharat, Vindhya
Pradesh and Rajasthan Acts, those persons; and
(c) on other lands the tenure holder or a
tenant or a Government lessee of the holding
or the holder of service land, as the case may
be, in any unit on which tendu leaves grow.
Each of the terms holder of a service land,
Government lessee, tenant and tenure holder is
separately defined but as it was admitted
before us that the petitioner firm is not one
of them, the definitions need not detain us.
Section 5 of the Adhiniyam provides as follows
"5. Restriction on purchase or transport of
tendu leaves.
sup. C.I/66-4
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(1) On the issue of a notification under
sub-section (3) of section 1 in any area no
person other than-
(a) the State Government;
(b) an officer of State Government
authorised in writing in that behalf; or
(c) an agent in respect of the unit in which
the leaves have grown;
shall purchase or transport tendu leaves.
Explanation I. Purchase of tendu leaves from
the State Government or the aforesaid
Government officer or agent shall not be
deemed to be a purchase in contravention of
the provisions of this Act.
Explanation II. A person having no interest
in the holding who has acquired the right to
collect tendu leaves grown on such holding
shall be deemed to have purchased such leaves
in contravention of the provisions of this
Act.
(2) Notwithstanding anything contained in
sub-section (1),-
(a) a grower of tendu leaves may transport
his leaves from any place within the unit
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wherein such leaves have grown to any other
place in that unit; and
(b) tendu leaves purchased from the State
Government or any officer or agent specified
in the said sub-section by any person for
manufacture of bidis within the State or by
any person for sale outside the State may be
transported by such person outside the unit in
accordance with the terms and conditions of a
permit to be issued in that behalf by such
authority and in such manner as may be
prescribed.
(3) Any person desiring to sell tendu leaves
may sell them to the aforesaid Government
officer or agent at any depot situated within
the said unit."
We shall analyse the provisions of this section later. For
the present we must follow up the narrative of events. By
notification the State of Madhya Pradesh, declared the areas
to which the Adhiniyam extended and subdivided the area into
units. The Imlai Estate, in respect of which the petitioner
firm held its agreement, was divided up into:
45
(i) unit No. 3 Baghraji leased area,
(ii) unit No. 5 Kundam leased area, and
(iii) unit No. 11 Umaria leased area.
Pursuant to the provisions of the Adhiniyam, the State
Government set up Advisory Committees under the Madhya
Pradesh Tendu Patta Mantrana Samiti Mulya Prakashan Niyam,
1964 and framed rules called Madhya Pradesh Tendu Patta
(Vyapar Viniyaman) Niyamavali, 1965. If it is necessary to
name them again, the former will be called the Niyam and the
latter the Niyamavali.
The State Government then invited tenders for the areas
including the three units but the remarks column showed that
these units were leased by the Malguzar to the petitioner
firm up to the year 1973. No tenders were received for
units 5 and 1 1 but there was a tender for unit 3. On March
20, 1965 the Minister for Forests in a meeting, informed the
representatives of the petitioner firm that their leases
stood extinguished by reason of the Adhiniyam and that time
was extended for submission of fresh tenders in respect of
the units left out. On March 23, 1965 tenders made by two
persons in respect of unit 3 (Baghraji) and unit 11 (Umaria)
were accepted and the Next day the petitioner firm was
informed, by letter from the Divisional Forest Officer,
Jabalpur Division, that the right to collect tendu leaves in
all the 99 villages of Imlai Estate was abrogated by the
State Government under the Adhiniyam. The present petition
was then filed.
The arguments of Mr. G. S. Pathak in support of the petition
were really two although they covered a good deal of ground.
His first contention was that the Adhiniyam did not touch
the rights of the petitioner firm as recognized and enforced
by this Court by its "writ of prohibition in the earlier
case and that the Adhiniyam bad not attempted to nullify the
decision of this Court either expressly or even indirectly
by making the law retrospective. His next contention was
that the Adbiniyam in terms did not apply to the petitioner
firm because of Explanation 1 to s. 5 of the Adhiniyam. He
claimed that the petitioner firm was entitled to move this
Court for the enforcement of the same fundamental right in
property which had been recognized by this Court on the
earlier occasion and the former decision was binding in this
case as res judicata. On behalf of the State the learned
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Attorney-General contended that there was no right in
property which could be claimed and -the petition was
incompetent in view of the later decisions of this Court
which had dissented from Chhotabhai
46
Jethabhai’s case(1) and that, in any event, the matter then
decided could not have taken note of the Adhiniyam which was
not in existence. He further submitted that the petitioner
firm was as much affected by s. 5 of the Adhiniyam as any
other person, the decision of this Court in its favour
notwithstanding:
We may begin by considering the correctness of the
contention that the earlier decision operates as res
judicata in this case. The history of the ruling in
Chhotabhai Jethabhai’s case(1) is wellknown. That case has
now no binding force as a precedent. In Shantabai v. State
of Bombay(2) petitions similar to those in Chhotabhai
Jethabhai’s case(1) met a different fate. Shantabai, who
claimed the benefit of Art. 19(1)(f) and (g) had been given
a right by her husband to take and appropriate all kinds of
wood from his Zamindari forests. The document was
unregistered. After the Abolition Act came into force the
right was interfered with. A petit-ion under Art. 32 of the
Constitution was moved in this Court but it failed.
Chhotabhai Jethabhai’s case was cited in :support of the
petition but it was not followed. Many circumstances not
noticed in Chhotabhai Jethabhai’s case(2) were pointed out.
As they have been summarized once before in Mahadeo v. State
of Bombay(3) we may quote from that case. Speaking of the
unregistered agreement, it was said
"if it conferred a part or share in the pro-
prietary right, or even a right to profit a
prendre-(i) needed registration to convey the
right. If it created a bare licence, the
licence came to an end with the interest of
-the licensers in the forests. If proprietary
right was otherwise acquired, it vested in the
State, and lastly, if the agreements created a
purely personal right by contract, there was
no deprivation of property, because the
contract did not run with the land."
Mahadeo’s case (3) took the same view of
Chhotabhai Jethabhai’s(1) case. The
Constitution Bench declined to accept that
such rights were ’property rights’ and the
petitioners in Mahadeo’s case(3) admitted that
they were only contractual rights. This Court
in Mahadeo’s case(3) observed that if they
were contractual rights-
"...... then also, as Pointed out in the
second of the two cases cited, the licenses
came to an end on the extinction of the title
of the licensers. In either case there
(1) [1953) S. C. R. 476.
(2) [1959] S. C. R. 265.
(3) [1959] Supp. 2 S. C. R. 339 at 343.
47
was no question of the breach of any
fundamental right of the petitioner which
could support the petitions which were
presented under Art. 32 of the Constitution.
It is this aspect of the matter which was not
brought to the notice of the Court, and the
resulting omission to advert to it has
seriously impaired, if not completely
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nullified, the effect and weight of the
decision in Chhotabhai’s case as a precedent."
It was, therefore, laid down that the decision in Chhotabhai
Jethabhai’s case(1), which treated the agreements as bare
licences and yet considered that a fundamental right to
property was conferred by them, "was apparently given per
incuriam" and could not therefore be followed.
In Chhotabhai Jethabhai’s case(2) reliance was placed on a
passage from the judgment of the Judicial Committee in
Mohanlal Hargovind v. C.I.T. (2) to find out the nature of
the agreements. The Judicial Committee was discussing the
matter to find out whether the amounts spent in buying tendu
leaves, which were the raw materials for manufacture of
bidis, became capital expenditure simply because crops of a
number of years were presently purchased. So long as crops
were purchased and no interest in anything else was
obtained, it was held the payment was on revenue and not
capital account. The observations were, therefore made in a
very different context. Similarly, reliance on a passage
from Baden Powell’s book on the Land Systems of British
India was not helpful because Baden Powell was merely
discussing the division of proprietary rights. between
different layers created by subinfeudation, Nor was the
reference to Benjamin on Sale quite happy because the author
was referring to medieval law and had discussed the modern
law on the succeeding page. It was for this reason that in
a succession of cases, Chhotabhai Jethabhai’s case(1) was
not relied upon. That ruling must be held not binding.,
Mr. Pathak, however, contended that whatever might be the
position vis-a-vis other cases, since the decision was given
in respect of the agreement in favour of the petitioner
firm, it must control subsequent cases by the rule of res
judicata. He conceded that the decision was that such
agreements betokened licences but he pointed out that this
Court must have treated these licences as conveying rights
to property because otherwise a writ could not be granted
under Art. 32. There can be no doubt that a right to
(1) [1953] S. C. R. 476.
(2) (1949) I.T. R. 473 (P. C.)
48
contract is not a right to property and it is a little
doubtful whether it was really treated as such in Chhotabhai
Jethabhai’s case(1). The Court while narrating the facts
did mention that the petitions were "to enforce the
fundamental rights of the petitioners to property," but
their Lordships were mindful of the tendu leaves, lac,
timber and wood which once plucked, detached or cut would
have become the property of the petitioners. Hence the
discussion of the definition of goods and future goods in
the Indian Sale of Goods Act. But there is no ruling that
the contracts themselves were property. Their Lordships did
not even once characterize the contracts as such, as
property. Indeed, the, prayer in the former case was
"The applicants, therefore, pray that a writ or direction or
order be made prohibiting or restraining the State
Government from interfering with the right of the applicants
to pick, gather and carry away the crop of tendu leaves, and
for making any claim in respect of the crop by virtue of Act
No. 1 of 1951."
This is not claiming a right to property but to the
continued acceptance of a contract.
Mr. Pathak, however, argued that the earlier decision of
this Court involved the assumption of the fundamental fact
that petitioner firm’s right to property was invaded. He
argued on the authority of Hoystead v. Commissioner of
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Taxation(2) that such a fundamental fact cannot, in a fresh
litigation, be allowed to be ignored. He submitted that it
was open to the Government to have demurred to the claim on
the ground that no right of property was invaded, but it did
not. This may be right but it does not solve our problem.
If the Adhiniyam had not been passed and the rights
recognised by this Court were again interfered with, it
would have been impossible for Government to ask that
Chhotabhai Jethabhai’s case(2) be reconsidered from the
point of view whether a fundamental right to property was
involved or not. The fresh litigation would in such a case
have been on an identical or similar cause of action and
because of the decision in favour of the petitioner firm
Government would have been bound by the rule of res
judicata. The situation today is, not the same as existed
in 1952. The cause of action then was based upon the
invasion of the rights of the petitioner firm by and under
the authority of the Abolition Act. Today the invasion is
by and under the authority of the Adhiniyam and manifestly
the two causes of
(1) [1953] S. C. R. 476.
(2) [1926] A. C. 155.
49
action are not alike. It is worth mentioning that
Hoystead’s case(1) was cited before the House of Lords in
Society of Medical Officers of Health v. Hope (2 ) but was
not followed. It may also be mentioned that in the volume
which contains Hoystead’s case there is to ’be found another
case of the Judicial Committee (Broken Hill Proprietary
Company Limited v. Municipal Council of Broken Hill(3) which
seems to be in conflict with Hoystead’s case(1). It was
argued before the House of Lords that Hoystead’s case(1) was
wrongly decided. The House did not pronounce their opinion
on this submission but noted the fact that there was this
conflict. They did point out that a decision of the
Judicial Committee ",as not binding on the House of Lords.
Lord Radcliffe distinguished Hoystead’s case(1) and stated
that it was useless to illuminate the only point which was
before the House of Lords, namely, the effect of a
succeeding valuation list on a decision given with regard to
an earlier valuation list. The same reason obtains here
also. The earlier case of this Court is useless to
illuminate the only point which arises before us, namely,
whether by the provisions of the Adhiniyam any right to
property as such is being offended. On this question we
cannot get any guidance from the earlier decision partly
because it did not in express terms decide even on the facts
existing in 1952 that a right to property was in jeopardy
and mainly because the effect of the new law upon the rights
such as they are today must be worked out afresh. The cause
of action is entirely distinct. For this reason we do not
think that-the earlier decision operates as res judicata,
even if it might have been assumed in that case that a right
to property was involved.
We have explained above that the Divisional Bench did not
refer to right to property although it is possible that it
thought in terms of property in leaves, timber etc. on their
being severed from earth as existing even before leaves,
timber etc. were so severed. This was not the’ true
position in law because the agreements then considered
betokened a licence coupled with a grant. Jr The petitioner
firm like the others had a licence to go to the forests to
pick and carry away tendu leaves but had no other right.
The attention of the Divisional Bench was not directed to
this difference. Such a decision cannot constitute a bar on
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the principle of res judicata when new circumstances have
come to exist which require a reappraisal of the true legal
position.
(1) [1926] A. C. 155.
(2) [1960] A. C. 551.
(3) [1926] A. C. 94.
50
Mr. Pathak next argued that the Adhiniyam said nothing about
the earlier decision in favour of the petitioner firm and
pointed out that the usual formula by which decisions of
courts are vacated by subsequent legislation is not to be
found in the Adhiniyam. Mr. Pathak has in mind provisions
which begin with the words "notwithstanding anything
contained in a judgment of any court etc." Such a provision
is, of course, not there. It is, however, not correct to
say that a decision may be evaded only by the use of these
words or some such words. If a statute creates new
circumstances which render the earlier decision
inapplicable, the effect must be to evade the earlier
decision of the court. The earlier decision then cannot
operate because the new statute alters the circumstances to
which the old decision applied, and as the cause of action
is different, the earlier decision ceases to play a part.
The earlier decision of this Court does not play any part,
even indirectly, as was suggested by Mr. Pathak.
The core of the problem thus is : what is the effect of the
Adhiniyam upon the rights of the petitioner firm under the
agreement it had obtained from Raja ? For this purpose, we
have to go to the terms of s. 5 of the Adhiniyam already set
out. The operative provision is to be found in the first
sub-section which says that after a notification is issued
under sub-s. (3) of s. 1 (which extends the Adhiniyam to any
area) no person shall purchase or transport tendu leaves
except the State Government or officer authorised in writing
in this behalf or an agent of that Government in respect of
any unit in which the leaves are grown. The expression no
person" is wide enough to exclude any person whatsoever
unless the rights of any party have been expressly saved.
Sub-section (1) is intended to be understood with the aid of
two Explanations each providing for a different subject-
matter. By the first Explanation purchase of tendu leaves
from any of the three persons mentioned in sub-s. (1) is not
to be deemed to be a purchase in contravention of this
Adhiniyam. Government or its officers and agents in this
way become the sole sellers of tendu leaves, and the sub-
section confers on the Government exclusively the monopoly
of sale of tendu leaves from an area to which the Adhiniyam
is extended. The second Explanation says that a person
having no interest in a holding but who has acquired the
right to collect tendu leaves grown on such holding shall be
deemed to have purchased such leaves in contravention of the
Adhiniyam. This Explanation states in the negative form
that a person having an interest in the holding may himself
collect the leaves but no person can obtain from the person
having an interest
51
in the holding, a right to collect tendu leaves from his
holding. The right to collect tendu leaves from the areas
to which the Adhiniyam extends belongs to the State
Government, its officers and its agents or under the second
Explanation to a person having interest in a holding. No
purchase of tendu leaves, except from Government, its
officers and agents, is legal by reason of the first sub-
section read ’with the first Explanation. The second sub-
section deals with transport. It allows a grower of tendu
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leaves to transport his leaves from any place within the
unit wherein such leaves are grown to any other place in
that unit, and tendu leaves purchased from the State
Government or its officers or agents by any person for
manufacture of bidis within the State or by any person for
sale outside the State may be transported outside the: unit.
No other person can at all transport tendu leaves. The
second sub-section has the effect of keeping the tendu
leaves within the unit until they have been purchased by or
from Government. On purchase they can be transported either
to a place within the State for the manufacture of bidis or
exported outside the unit. Under the third sub-section any
person who desires to sell tendu leaves may sell them to a
Government officer or agent at any depot situated within his
unit. By reason of these provisions growers of tendu
leaves, other than Government, are compelled to sell them to
Government, its officers and agents, at the various depots
at the prices settled by the Advisory Committee under the
Niyam. The Niyamavali lays down the procedure to be
followed Once all tendu leaves have come into the possession
of Government, purchase of tendu leaves must be from the
Government and’ its officers and agents because only
purchase is not an offence under the Adhiniyam.
The position of the petitioner firm is this : it does not
seek to justify its acquisition of tendu leaves by reason of
a purchasefrom Government. It says that it has already
purchased the tendu leaves from the Raja by an agreement
made with the Raja in 1948 and that that agreement is
binding upon Government because of a decision of this Court.
-But the decision of this Court merely decided that there
was nothing in the Abolition Act by which the agreement
could be said to be affected. That decision had nothing to
say about those rights of the petitioner firm, viewed in the
light of the Adhiniyam. The Adhiniyam is challenged only on
the ground that it cannot operate against the petitioner
firm which holds a decree of this Court. The decree of this
Court only said that Government must not interfere with the
petitioner firm by reason of anything contained in the
Abolition Act. To the Aboli-
52
tion Act must now be added the Adhiniyam and we must see
what is the joint effect of the two Acts. -The Abolition Act
vested the forests and tendu plants in Government and they
become the property of Government. This was decided a long
time ago and there is no quarrel on this account. By the
Adhiniyam Government gets the sole right to purchase tendu
leaves from any area to which the Adhiniyam extends and no
person can buy tendu leaves except from Government, its
officers and agents. Government obtains the monopoly of
trade in tendu leaves in those areas of the State to which
the Adhiniyam applies. The purchase of tendu leaves must
now be in accordance with the Adhiniyam. Since there is no
right to property before the leaves are plucked, no such
rights can be said to be invaded by the Adhiniyam. It
cannot be said either by reason of any rule of res judicata
or on analogy that the petitioner firm is entitled to invoke
Art. 32 of the Constitution when it possesses no right of
property in the leaves. It has only a contract in its
favour and that is not a right of property. No doubt the
Adhiniyam indirectly overreaches the decision of this Court
but that, in any event, is open to the State Legislature
provided it passes a valid law to that effect. The law is
not challenged as invalid and it must therefore apply to the
petitioner firm, as to any other person. The petitioner
firm cannot take shelter of Explanation 1 till it buys
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leaves from Government under the Adhiniyam and the
Niyamavali.
In our judgement the rights of the petitioner firm such as
they were, must be held to be no longer available to it.
The petitioner ’firm must buy its leaves like any other
person. The petition must, ’therefore, fail. It will be
dismissed, but in the circumstances of -the case there will
be no orders as to costs.
Petition dismissed.
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