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1952 Supreme(Nagpur) 99
HIGH COURT OF NAGPUR
B P Sinha, J R Mudholkar
LAXMAN ICHHARAM – Appellant
Versus
DIVISIONAL FOREST OFFICER – Respondent
Miscellaneous Petiton No. 103 of 1952
Decided on : 05-09-1952
D L Jayawant, M W Puranik, T P Naik, Advocates
The right to collect and appropriate tendu leaves granted to raiyats under Clause 22 of the Central Provinces States Land Tenure Order, 1949, is not an absolute right but is subject to the conditions laid down in Clause 23(1).
Headnote:
LAND TENURE - CENTRAL PROVINCES STATES LAND TENURE ORDER, 1949 - CLAUSE 23(1) - TENDU LEAVES - SALE TO NOMINEE OF DEPUTY COMMISSIONER - VALIDITY - CONSTITUTIONALITY - ARTICLES 19(1)(F) AND (G) AND 31 OF THE CONSTITUTION - 'MALIK MAKBUZA' RIGHTS - ACQUISITION PROCEDURE - ARTICLE 19(1)(G) - MONOPOLY - CREATION - VALIDITY.
Fact of the Case:
Petitioners, a raiyat and a partner in a firm dealing in tendu leaves, challenged the direction issued by the Deputy Commissioner under Clause 23(1) of the Central Provinces States Land Tenure Order, 1949, requiring raiyats to sell tendu leaves to a particular firm at a fixed price. They contended that the direction infringed their fundamental rights under Articles 19(1)(f) and (g) and Article 31 of the Constitution.
Finding of the Court:
1. Clause 23(1) of the Central Provinces States Land Tenure Order, 1949, which empowers the Deputy Commissioner to direct raiyats to sell certain forest produce, including tendu leaves, to a specified person at a specified price, is valid and constitutional. 2. The right to collect and appropriate tendu leaves granted to raiyats under Clause 22 of the Order is not an unqualified right but is subject to the conditions laid down in Clause 23(1). 3. The direction issued by the Deputy Commissioner under Clause 23(1) does not infringe the fundamental rights of raiyats under Articles 19(1)(f) and (g) and Article 31 of the Constitution as the right conferred on raiyats is not an absolute right. 4. The Petitioner, who claimed to have acquired 'malik makbuza' rights, had not completed the prescribed procedure and obtained a formal declaration under the relevant rules, and therefore, could not claim exemption from the direction issued under Clause 23(1). 5. The direction issued by the Deputy Commissioner does not create a monopoly and does not violate the fundamental right to carry on a trade or business under Article 19(1)(g) of the Constitution, as the Petitioner was not precluded from carrying on his business in the area but only from purchasing tendu leaves from ordinary raiyats.
Issues: 1. Whether Clause 23(1) of the Central Provinces States Land Tenure Order, 1949, is valid and constitutional. 2. Whether the right to collect and appropriate tendu leaves granted to raiyats under Clause 22 of the Order is an absolute right. 3. Whether the direction issued by the Deputy Commissioner under Clause 23(1) infringes the fundamental rights of raiyats under Articles 19(1)(f) and (g) and Article 31 of the Constitution. 4. Whether the Petitioner, who claimed to have acquired 'malik makbuza' rights, is exempt from the direction issued under Clause 23(1). 5. Whether the direction issued by the Deputy Commissioner creates a monopoly and violates the fundamental right to carry on a trade or business under Article 19(1)(g) of the Constitution.
Ratio Decidendi: 1. The Court interpreted Clause 23(1) of the Central Provinces States Land Tenure Order, 1949, in conjunction with Clauses 21 and 22, and held that the right granted to raiyats to collect and appropriate tendu leaves was subject to the conditions laid down in Clause 23(1). 2. The Court rejected the argument that tendu leaves were not included in the definition of 'forest produce' under the Indian Forest Act, 1927, and held that the law-making body intended to treat tendu leaves derived from trees in a raiyat's holding as if they were found in or brought from a forest. 3. The Court held that the direction issued by the Deputy Commissioner under Clause 23(1) did not infringe the fundamental rights of raiyats under Articles 19(1)(f) and (g) and Article 31 of the Constitution as the right conferred on raiyats was not an absolute right. 4. The Court held that the Petitioner, who claimed to have acquired 'malik makbuza' rights, had not completed the prescribed procedure and obtained a formal declaration under the relevant rules, and therefore, could not claim exemption from the direction issued under Clause 23(1). 5. The Court held that the direction issued by the Deputy Commissioner did not create a monopoly and did not violate the fundamental right to carry on a trade or business under Article 19(1)(g) of the Constitution, as the Petitioner was not precluded from carrying on his business in the area but only from purchasing tendu leaves from ordinary raiyats.
Final Decision: Both petitions were dismissed with costs.
1. This petition and Miscellaneous Petition No. 104 of 1952 have been made under Article 226 of the Constitution and this order will govern the decision of both of them.
2. The Petitioner in this petition, Laxman, is a raiyat of certain fields in the village Badi Dumarpaii, Chhoti Dumarpali and Ada Pathara in the Kharsia Tahsil of Raigarh district. These fields are held by him along with some other persons. There are tendu trees and tendu plants in these fields and the Petitioner alleges that he sells the leaves of these trees and plants to the manufacturers of bidis in the district. The Petitioner in Miscellaneous Petition No. 104 of 1952 is a partner in the firm known as 'Hiralal Bros.' carrying on business of purchasing and selling tendu leaves to the manufacturers of bidis.
3. On the 16th January 1952, the Divisional Forest Officer, Raigarh, announced that an auction of the theka of tendu leaves will be held on the 19th February 1952 at Raipur and published the terms on which the auction will be held. In term No. 23, it was stated that the Deputy Commissioner, Raigarh, would fix the rate at which tendu leaves grown in the fields of the cultivators or collected by them should bo sold, and the persons to whom they should be sold will make a declaration regarding these matters. At the auction held on the 19th February 1952 the firm of Babaji Motibhai was the highest bidder and their bid was accepted.
4. On the 30th April 1952, the Deputy Commissioner, Raigarh, issued a pamphlet in Hindi styled as 'soochana patra' and under Clause 23(1) of the Central Provinces States Land Tenure Order, 1949, directed the raiyats of Kharsia tahsil to sell tendu leaves plucked by them from the trees and plants in their fields to the firm of Babaji Motibhai and to none else. According to the Petitioners in both the petitions, the Deputy Commissioner was not entitled to give such a direction. They contend that as a result of the direction of the Deputy Commissioner the purchasers are afraid of purchasing tendu leaves from the cultivators and that the action of the Deputy Commissioner infringes the rights guaranteed to them under Article 19(1)(f) and (g) and Article 31 of the Constitution.
5. The Petitioner Laxman further contends that as provided for by Section 56 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1950 (Act I of 1951), he deposited on the 13th February 1951 an amount equal to twice the annual rent of the fields for acquiring malik makbuza rights in them and that having acquired those rights he had further improved his position with the result that Clause 23(1) of the Central Provinces States Lands Tenure Order, 1949, became inapplicable to him. He thus challenges the direction made by the Deputy Commissioner on two grounds: firstly, that the Deputy Commissioner could not direct even a raiyat to dispose of tendu leaves obtained by him from his own holding to any particular person or to fix the rate at which he should sell them and, secondly, that he having acquired malik makbuza rights, Clause 23(1) of the Central Provinces States Land Tenure Order under which the Deputy Commissioner had issued the direction was not applicable to him. On behalf of Pliralal, a further contention was raised that by giving the right to purchase tendu leaves and by directing the cultivators to sell tendu leaves gathered by them from their fields to the highest bidder at the auction, a monopoly was created and that this was unconstitutional.
6. According to the learned Additional Government Pleader, who appears for the State as well as for other parties, the appropriate remedy for the Petitioners was by way of a regular suit and not by way of a petition under Article 226 of the Constitution. Further according to him, the petitions were made after undue delay and could not be entertained. As regards. Hiralal, he urged in addition that this person having actually bid at the auction but failed in securing the c
