# MIS. ANWAR KHAN MEHBOOB & CO v. STATE OF MADHYA PRADESH AND OTHERS - **Citation:** [1966] 2 S.C.R. 40 - **Court:** Supreme Court of India - **Decided:** 1965-10-06 - **Case number:** Writ Petition No. 38 of 1965 - **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J. C. Shah, S. M. Sikri - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-anwar-khan-mehboob-co-v-state-of-madhya-pradesh-and-others-3579 - **Pages:** 13 ## Headnote Constitution of India, Art. 32-Earlier decision-when res-judicataRight to pluck tendu /e([Ves-If Property. Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adlziniyam, 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 (Esta'es, 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 aITect their validity or to extinguish such rights. Subsequent to this deoision,. in 1964, the Madhya Pradesh Tendu PaJ'ta (Vyapar Viniyaman Adhiniyam) was passed, the object of which was to create a State monopoly in the trade of tendu leaves reotricting its purchase or transport. When the petitioner firm was informed that the right to collect tendu leaves was abrogated by the State GoYernment under the Adhiiiiyam, it approached this Court under Art. 32 of the Constitution. Jn support of the petition, A B c D E it was contended that (i) the petitioner was seeking to enforce the same F "fundamental case and as mch this decision bad a binding effoot as res judicata, and (ii) the Adhinivam did not touch the rights of •he petitioner as recognised and enforced by this Court in Chho!abhai Jethabhai'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 irt might have been assumed in that case that a right to property was involved. Subsequent descisions of this Court have laid down that the decision in Chhotahhai~s case which treated the a!'.!reem-ents as bare licences and yet considered that a fundamental right -to property as conferred bv them uwa<3 apparently, given per incuriam and could not therefore be followed." A right to contract is not a right to property and Chhotabhai'' caghts of the petitioner firm as recognized and enforced by this Court by its "writ of prohibition" iu the earlier case and that the Adhiniyam bad not attemnted to nullify the decision of this Court either expressly or even indirectly by making the law restrosnective. His next contention was that the Adhiuivam in terms did not G apply to the petitioner firm because of Explanation I 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 decisjon was binding in this case as res judicata. On behalf of the Stat.~ the learned AttorneyH 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 SUPREME COURT REPORTS [1966] 2 S.C.R. Jethablzai's case(') and that, in any event, the matter then decided A 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 B that the earlier decision operates as res judicata in this case. The history of the ruling in Chhotablzai Jethabhai's case(') 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(') met a different fate. Shantabai, who claiiued the benefit of Art. 19(1)(f) and (g) had been C 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 petition 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 circumD stances not noticed in Chhotabhai J ethabhai' s case(') 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 proE prietary right, or even a right to profit a prendre-(it) needed registration to convey the right. If it created a bare licence, the licence came to an end with the interest of the !icensors 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 con-. F tract, there was no deprivation of property, because the contra• t did not run with the land." Mahadeo's case( 3 ) took the same view of Chhotabhai Jethabhai's(') case. The Constitution Bench declined to accept that such rights were 'property rights' and the petitioners in Mahadeo'~ 6 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 licensors. In either case there (I) (1953) S. C. R. 476. (2) (1959] S. C. R. 265. (3) (1959) Supp. 2 S. C. R. 339 at 343. H • • '>· ) A B c D E F MEHBOOB & co. v. STATE (Hidayatullah, J.) 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 Jethablzai's case('), which treated the agreements as bare licences and yet considered that a fundamental right to properly, was conferred by them, '"was apparently given per incuriam" and could not therefore be followed. In Chlwtabhai Jethabhai's case(') reliance was placed on a passage from the judgment of the Judicial Committee in Mohan/al ffargovind v. CJ.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 mediaeval Jaw 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. G 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 favonr of th~ 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 aB H conveying rights to property because otherwise a writ could not be granted under Art. 32. There can be no doubt that a right to (I) [l953J S. C.R. 476. (2) (!949) I. T. II.. 473 (P. C.) 48 SUPREME COURT REPORTS (1966).2 $.C.R. contract is not a right to property and! it is a little doubtful whether A it was really treated as such in Chhotabhai J ethabhai' 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 B 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 ~ontracts as such, as property. Indeed, the prayer in the former case was : c "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." D This is not claiming a right to property but t© 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 E authority of Huystead v. Commissioner of Taxation( 2 ) that such 11 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 properly was invaded, but it did not. This may be right but it does not solve F our problem. If the Adhiniyam had not been passed and the rights recognised by this Court were again interfered with, it wonld have been impossible for Government to ask that Chhotabhai Jethablzai's case(') be reconsidered from the point of view whether a fundamen.tal right to property was involved or not. The fresh litigation would in such a case have been on an identical G 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 thei authority of the Abolition Act. Today the invasion is by and under the H authority of the Adhiniyam and manifestly the two causes of (I) (1953] S. C. R. 476. (2) [1926] A. C. 155. MEHBOOB & co. v. STATE (Hidayat(Jl/ah, !.) 49 A action are not alike. It is worth mentioning that Hoystead's case(') 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 B of Broken Hill(') which seems to be in conflict with Hoystead's case('). It was argued before the House of Lords that Hoystead's case(') was wrongly decided. The House did not pronounce their opinion on this submission but noted the fact that there was r this conflict. They did point out that a decision of the Judicial Committee was not binding on the House of Lords. Lord C Radcliffe distinguished Hoystead's case(') 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 D 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 E 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 a~ res judicata, even if it might have been assumed in that case that a right to property was involved. F 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 agree• ments then considered betokened a licence coupled with a grant, G The petitioner finn 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 the principle of res judicata when new circumstances have come to exist which require H a reappraisal of the true legal position. (1) [1926] A. C. 155. (2) [1960] A. C. 551. (3) [1926] A. C. 94. 50 SUPREME COURT REPORTS (1966] 2 S.C.R. Mr. Pathak next argued that the Adhiniyam said nothing A about the earlier decision in favour of the petitioner firm and pointed out that the usual fonnula 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 jndgment of any court etc." Such a provision is, of course, not there. It is, B however, not correct to say that a decision may be evaded only by j 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 C 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 agreeD ment it had obtained from Raja? For this purpose, we have to go to the terms of s. 5 of the Adhiniyam already set ou_t. 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 E 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 F 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 Adhiniyarn. Government or its officers and agents in this way become the sole sellers of tendu leaves, and the sub-section confers on the Government G exclusively the monopoly of sale of tendu leaves from an area to which the Adbiniyam is extended. The second Explanation says that a person }\aving no interest in a holding but who has acquired the right to collect tendu leaves grO\vn 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 H person having an interest in the holding may himself collect the leaves but no person can obtain from the person having an interest A B MEHBOOB & co. v. STATE (Hidayatullah, J.) 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 Adhini)