M/S. ANWAR KHAN MEHBOOB & CO. versus STATE OF MADHYA PRADESH AND OTHERS

Citation: [1966] 2 S.C.R. 40 · Decided: 06-10-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

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Judgment (excerpt)

40 
MIS. ANWAR KHAN MEHBOOB & CO. 
v. 
STATE OF MADHYA PRADESH AND OTHERS 
October 6, 1965 
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, 
M. HIDAYATULLAH, J. C. SHAH AND S. M. SIKRI, JJ.] 
Constitution of India, Art. 32-Earlier decision-when res-judicata-
Right 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 Consti-
tution to enforce what they claimed as their "fundamental right to pro-
perty". 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. Sub-
sequent 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'' ca<e 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 altention 
G 
H 
..
.JF, 
MEHBOOB & co. v. STATE (Hidayatullah, J.) 
41' 
A 
of the Divisional Bench was not directed 10 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 
ba.ed on 
the 
invacion of rights under the authority of the Abolition Act. Now, the 
invas'on is and under 'th•o au'horiiy of the Adhiniyam. [48 G-H; 49 E] 
If a statute creates new circumstances whh.:h render the earlier decision 
B 
inapplicable, the e!foct 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 
C 
is not a right of prop·orty. [52 C-D] 
Case law referred to. 
ORIGINAL JURISDICTION: Writ Petition No. 38 of 1965. 
Petition under Art. 32 of the Constitution of India for the 
enforcement of

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