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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               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

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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. 53