M/S. Anwar Khan Mehboob & Co. Vs.
State of Madhya Pradesh & Ors  INSC 197 (6 October 1965)
06/10/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 1637 1966 SCR (2) 40
RF 1986 SC 63 (25) RF 1986 SC1085 (15)
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.)
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
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  3 S.C.R. 476., issued a writ prohibiting the
State from 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 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
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.
ORIGINAL JURISDICTION : Writ Petition No. 38
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
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 proprietor, 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)  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 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
(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
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 44 (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 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 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
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)  S. C. R. 265.
(3)  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 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)  S. C.
(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 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
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)
 S. C. R. 476.
(2)  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
The attention of the Divisional Bench was not
directed to this difference. Such a decision cannot constitute a bar on the
principle of res judicata when new circumstances have come to exist which
require a reappraisal of the true legal position.
(1)  A. C. 155.
(2)  A. C. 551.
(3)  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 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
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 leaves from Government under the Adhiniyam and the Niyamavali.
In our judgment 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.