TMI Blog1965 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... hes should be cut down. 2. 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 briefly called the Abolition Act) all right, 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 purpose of State, free from all encumbrances. The Government of Madhya Pradesh obstructed the person who held contracts for tendu leaves, lac, 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 described as 'fundamental right 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 petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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. 4. We have given a assume of the provisions of the Adhiniyam but we must set our s. 5, because it is the heart of the Adhiniyam and also of the problem 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit No. 3 Baghraji leased area, (ii) unit No. 5 Kundam leased area, and (iii) unit No. 11 Umaria leased area. 7. 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. 8. 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 tender were received for units 5 and 11 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 our. 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 [1953] S.C.R. 476 were pointed out. As they have been summarized once before in Mahadeo v. State of Bombay we may quote from that case. Speaking of the unregistered agreement, it was said : ....... if it conferred a part or share in the proprietary right, or even a bright to profit a prendre - (it) needed registration to convey the right. If it created a bare licence, the licence came to an end the interest of the licensors 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. 11. Mahadeo's case ([1959] Supp. 2 S.C.R. 339 at 343.) took the same view of Chhotabhai Jethabhai's case [1953] S.C.R. 476. The Constitution Bench declined to accept that such rights were 'property rights' and the petitioners in Mahadeo's case ([1959] Supp. 2 S.C.R. 339 at 343.) admitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the decision was given in respect of the agreement in favour of the petitioner firm, it must control subsequent case by the rule do res judicata. He conceded that the decision was such agreement betokened licences but he pointed out the this Court must have treated these licences as conveying right to property because otherwise a writ could not be granted under Act. 32. There can be no doubt that a right to contracts is not right to property and it is a little doubtful whether it was really treated as such in Chhotabhai Jethabhai's case: [1953] S.C.R. 476. The Court while narrating the facts did mention that the petitions were to enforce the fundamental right 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 India 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission but noted the fact that there was this conflict. They did point out that a decision of the Judicial Committee was not binding on the House of Lords. Lord Radcliffe distinguished Hoystead's case [1926] A.C. 155 and start 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 party 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 right 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. 17. We have explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re grown. The expression no person is wide enough to exclude any person whatsoever unless the right 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 be deemed to be a purchase in contravention of this Adhiniyam. Government or its officers and agent 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 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 from that a person having an interest in the holding may himself collect the leaves but no person can obtain from the person having interest in the holding, a right to collect tendu leaves from his holding. The right to collect tendu leaves from the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Abolition 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 forest 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 there 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 the leaves are plucked, no such right 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 parity owner firm is entitled to invoke Art. 32 of the Constitution when it possesses no right of property in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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