Tripura High Court
Borgang Tea Company Private Limited vs The State Of Tripura Represented By The ... on 9 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 128
Bench: Akil Kureshi, S G Chattopadhyay
Page - 1 of 33
HIGH COURT OF TRIPURA
AGARTALA
WA No.18/2018, WA No.40/2016,
WP(C) No.332/2013, WP(C) No.366/2013,
WP(C) No.369/2013, WP(C) No.370/2013,
WP(C) No.616/2015
A) WA No.18/2018 :
Borgang Tea Company Private Limited,
a company registered under the Companies Act, 1956 having its registered
Office at 119, Hem Barua Road, Fency Bazar, Guwahati, Assam,
represented by the Manager, Harendranagar T.E. Duly authorized.
............... Appellant(s).
Vs.
1. The State of Tripura represented by the Chief Secretary to the
Government of Tripura, New Secretariat, P.O. - New Capital
Complex, Agartala, West Tripura.
2. The Secretary to the Government of Tripura, Revenue Department,
New Secretariat, P.O. - New Capital Complex, Agartala, West
Tripura.
............... Respondent(s).
B) WA No.40/2016 :
1. Fortuna Agro Plantations Limited, a company registered under the
Companies Act, 1951, having its registered Office at P.O. Sadhana
Ashram, District - Unakoti, Kailashahar, Tripura.
2. Dilkhosa Tea Company Limited, having its registered office at 3,
Wood Street, Kolkata - 700016.
............... Appellant(s).
Vs.
1. The State of Tripura , represented by the Chief Secretary to the
Government of Tripura, New Secretariat, P.O. New Capital Complex,
Agartala, West Tripura.
Page - 2 of 33
2. The State of Tripura, represented by the Secretary to the Government
of Tripura, Revenue Department, New Secretariat, P.O. - New Capital
Complex, Agartala, West Tripura.
3. The District Magistrate & Collector, Unakoti, P.O. - Gournagar,
Kailashahar, Tripura.
............... Respondent(s).
C) WP(C) No.332/2013 :
Laxmi Tea Company Limited, a company registered under the Companies
Act 1956, having its registered office at 17, R N Mukherjee Road,
Kolkata 700 001.
............... Petitioner(s).
Vs.
1. The State of Tripura , represented by the Chief Secretary to the
Government of Tripura, New Secretariat, P.O. New Capital Complex,
Agartala, West Tripura.
2. The District Magistrate & Collector, Unakoti, P.O. - Gournagar,
Kailashahar, Tripura.
............... Respondent(s).
D) WP(C) No.366/2013 :
1. Adarini Tea Estate (TE), Mohanpur, P.O. Lembucherra, P.S Lefunga,
District -Tripura West, represented by its Manager.
2. The Manager, Adarini Teas Estate (T.E.) Mohanpur, PO.
Lembucherra PS Lefunga, District Tripura West.
3. Sri Sujoy Chowdhury, S/o. Lt. Mrinal Kanti Chowdhury, resident of
Palace Compound, West Agartala, P.O. Agartala, PS West Agartala
District Tripura West, Pin - 799 001.
Page - 3 of 33
4. Smt. Sumana Shome (Chowdhury), W/o Sri Sudip Shome, resident of
Durga ankar Lane, Ambika Patty, Silchar, District Cacher Assam, Pin
- 788 004.
5. Smt. Sumita Das(Chowdhury), W/o Sri Suman Das, resident of Flat
No. 302, 3rd Floor 74A, Raja S.C. Mallik Lane, Kolkata - 700 047,
West Bengal.
6. Smt. Kajari Roy (Chowdhury),W/o Sri Subrata Roy, resident of
Dhubri Town, Ward No. 7, P.O. & P.S Dhubri, District - Dhubri,
Assam.
[The Petitioner Nos.4-6 are represented by the Petitioner No. 3, Sri Sujoy
Chowdhury as their constituted Attorney by dint of Power of attorney vide
Nos.703 dated 26.04.2013, dated 07.02.2013 and IV- 48(D) dated
21.08.2013.]
............... Petitioner(s).
Vs.
1. The State of Tripura, represented by the Secretary, Revenue, Govt. of
Tripura, New Capital Complex, P.O. Agartala Secretariat, P.S. East
Agartala, District Tripura West, Pin - 799 010.
2. The Secretary, Revenue, Govt. of Tripura, New Capital Complex,
P.O. Agartala Secretariat, P.S. East Agartala, District Tripura West,
Pin -799 010.
3. The District Magistrate & Collector, West Tripura, Agartala, P.O.
Agartala Pin -799 001.
4. The Sub- Divisional Magistrate, (SDM) Sadar, Agartala, P.O.
Agartala, District Tripura West, Pin - 799 001.
5. The Sub- Divisional Magistrate, (SDM) Mohanpur, P.O. Mohanpur,
District Tripura West, Pin -799 211.
6. Smt. Anindita Chowdhury, W/o Lt. Anjan Chowdhury, resident of
Indirapally, Palace Compound, Agartala, P.O. Agartala P.S. West
Agartala, District Tripura West, Pin - 799 001.
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7. Sri Anindya Narayan Chowdhury, S/o Lt. Anjan Chowdhury, resident
of Indirapally, Palace Compound, Agartala, P.O. Agartala P.S. West
Agartala, District Tripura West, Pin - 799 001.
................ Respondent(s)
E) WP(C) No.369/2013 :
1. Smti. Rita Chakraborty,
2. Smti. Mita Chakrborty,
3. Smti. Nita Chakraborty,
All are daughters of Late Prabir Kumar Chakraborty,
residents of Kalkalia Tea Estate, P.O. Kalkalia Tea Estate,
P.S. Sidhai, Mohanpur, Pin - 799 211, West Tripura.
............... Petitioner(s).
Vs.
1. The State of Tripura, represented by the Secretary to the Government
of Tripura, Department of Revenue, New Secretariat Complex, P.O.
Kunjaban, Agartala, West Tripura.
2. The Revenue Secretary, to the Government of Tripura, New
Secretariat Complex, P.O. Kunjaban, Agartala, West Tripura.
3. The District Magistrate & Collector, West Tripura, P.O. Agartala, Old
Secretariat Building, Agartala.
4. The Sub- Divisional Magistrate Mohanpur, P.O. Mohanpur,
District - West Tripura.
................ Respondent(s)
F) WP(C) No.370/2013 :
S.R.P. Projects Pvt. Ltd., a company registered under The Companies Act
and owner of Binodini Tea Estate, Mohanpur, P.O. Chechoria, P.S.
Lefunga, District - West Tripura, represented by its authorized signatory
Shri Tara Bhusan Saha.
............... Petitioner(s).
Page - 5 of 33
Vs.
1. The State of Tripura, represented by the Secretary to the Government
of Tripura, Department of Revenue, Civil Secretariat, P.O. Kunjaban,
Agartala, West Tripura.
2. The Revenue Secretary to the Government of Tripura, New
Secretariat Complex, P.O. Kunjaban, Agartala, West Tripura.
3. The District Magistrate & Collector, West Tripura, Government of
Tripura, Old secretariat Building, Agartala, - 799 001.
4. The Sub- Divisional Magistrate, Mohanpur, P.O. Mohanpur,
District - West Tripura.
................ Respondent(s).
F) WP(C) No.616/2015 :
1. Luxmi Tea Company Limited, 17 R.N. Mukherjee Road, Kolkata - 17.
2. General Manager, Manu Valley Tea Estate, Kailashahar, District -
Unakoti.
............... Petitioner(s).
Vs.
1. The State of Tripura, represented by the Secretary to the Government of
Tripura, Revenue Department, New Secretariat, P.O. N.C.C., Agartala,
West Tripura.
2. The District Collector, Unakoti District, P.O. Gournagar, Kailashahar,
District - Unakoti.
................ Respondent(s).
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_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE JUSTICE MR. S G CHATTOPADHYAY
For Appellant(s)/Petitioner(s) : Mr. S M Chakraborty, Sr. Advocate,
Mr. D K Biswas, Advocate,
Mr. D R Choudhury, Advocate,
Mr. D Debnath, Advocate,
Mrs. Pinky Chakraborty, Advocate.
For Respondent(s) : Mr. Debalaya Bhattacharjee, Govt. Adv.,
Mr. M Debbarma, Addl. Govt. Advocate,
Mr. Arijit Bhowmik, Advocate,
Mr. P Saha, Advocate.
Date of hearing & judgment : 9th February, 2021.
Whether fit for reporting : Yes.
J U D G M E N T (O R A L)
(Akil Kureshi, CJ).
All these proceedings involve similar questions of interpretation of the provisions contained in Tripura Land Revenue and Land Reforms Act, 1960 ("TLR & LR Act" for short). However, facts differ from case to case. The common feature of these proceedings is that all the original petitions or the writ appeals, as the case may be, are filed by entities engaged in managing tea estates and manufacturing tea. They were granted retention permissions and exemptions by the competent authorities under Section 136(1) and under Section 178 of the TLR & LR Act. These exemptions under Section 178 of the Act are either partially or Page - 7 of 33 completely withdrawn by the impugned orders on the ground that the petitioners had violated the conditions of the exemptions. [2] With this background, we my record individual facts :
[A] WA No.18/2018 is filed by one Borgang Tea Company Private Limited who was the petitioner of WP(C) No.703/2016. The said tea company was holding 644.17 acres of land situated in Laxmilunga under Sub-Division - Sadar described as Harendranagar Tea Estate. On 5th November 1975, the Commissioner of Revenue, Land Reforms and Taxes, Tripura, passed an order allowing the petitioner to retain the said land admeasuring 644.17 acres of tea estate under Section 136(1)(f) of TLR & LR Act, 1960 and further, exempting the land from the operation of ceiling provisions contained in Section 164 of the said Act in terms of sub-section (1) of Section 178 of the Act. It appears that the administration noticed that there was large scale rubber plantation in the said land of the tea garden. After carrying out an inquiry and after granting an opportunity of hearing to the petitioner, the Revenue Secretary, Government of Tripura, passed an order dated 7th December, 2015 in which he came to the conclusion that out of the total land allowed to be retained by the petitioner, 10.30 acres was vacant land and 148.51 acres contained rubber plantation. According to him thus a total of 158.81 Page - 8 of 33 acres of the land was not utilized by the company for the purpose of tea plantation for which the petitioner was allowed to retain the land. He, therefore, invoked powers under sub-section (4) of Section 178 of the TLR & LR Act and withdrew the exemption granted to the petitioner with respect to 158.81 acres of land and ordered that such land may be recorded as a Khas land in favour of the Government.
The petitioner challenged the said order before the learned Single Judge by filing writ petition and pointed out that Section 178(1), as it was originally enacted, envisaged exemption from the ceiling even in case of rubber plantation alongside for growing of tea and coffee. The words "or rubber" were deleted from clause (a) of sub-section (1) of Section 178 by the legislature w.e.f. 20th March, 2014.
The learned Single Judge dismissed the writ petition. He was of the opinion that exemption was granted to the petitioner for growing tea. To the extent this condition was breached, the Government was justified in withdrawing the exemption. The appellant has challenged this judgment in the writ appeal.
[B] In WA No.40/2016, appellant Fortuna Agro Plantations Limited was the original petitioner of WP(C) No.509/2012. The said petitioner held vast tracts of land in Village Murticherra, Kailashahar Sub-Division Page - 9 of 33 which was described as Dilkhusa Tea Estate. The Commissioner of Revenue, Land Reforms and Taxes, passed order dated 23rd August, 1975 allowing the petitioner to hold 2,100 acres of land, further providing that remaining 546.39 acres would not be included in this holding allowed to be retained and would be resumed by the Government. This permission was granted for both, Section 136(f) as well as in terms of Section 178(1) for the purpose of Section 164 of TLR & LR Act. The exemption from ceiling provision was subject to following condition :
"The estate authorities should show definite improvement in the management of the garden, the development of area and proper utilization of the lands etc. within a period of 3 years from the date of the issue of this order. In the event of any failure in this direction, the exemption order issued would be withdrawn and land resumed."
On the premise that the petitioner had diverted portion of this land for other uses, the Government initiated an inquiry and after hearing the petitioner the Secretary, Revenue Department, passed order dated 6th October, 2012. In this order, it was recorded that on the estate there is a saw mill and there is also rubber plantation. The order referred to the condition for development and improvement of the management of tea garden within 3 years from the date of issuance of the exemption order. It was further observed that for saw mill and rubber plantation, there was a Page - 10 of 33 diversion of land to the extent of 35.08 acres and 257.27 acres. He, thereupon, cancelled the exemption granted under Section 178(1) of the TLR & LR Act for the entire land.
This order Fortuna Agro had challenged by filing WP(C) No.509/2012. It appears that one Dilkhusa tea company was the owner of the land and Fortuna Agro was cultivating the land on lease. Dilkhusa had also therefore filed WP(C) No.55/2013. The learned Single Judge disposed of both the petitions by a common judgment. He came to the conclusion that withdrawing the exemption requires no interference. However, subsequent order passed by the Collector on 3rd November, 2012 was set aside. Dilkhusa Tea Estate would have an opportunity of filing the return indicating the preference for retaining 1 unit of land as per the ceiling provision. This judgment Fortuna Agro has challenged in the writ appeal.
[C] In WP(C) No.332/2013, the petitioner Laxmi Tea Company was holding vast tracts of land admeasuring 1150.12 acres situated in Chandipur of Kailashahar Sub-Division known as Manuvally Tea Estate. The Commissioner of Revenue had passed an order dated 23rd July, 1975 allowing the said company to retain 1152.12 acres of land under Section Page - 11 of 33 136(1)(f) of the TLR & LR Act for which exemption under Section 178(1) of the Act was also granted.
On 21st April, 2012, Sub-Divisional Magistrate, Kailashahar, issued a notice informing the petitioner that the petitioner has planted rubber in tea garden in an area comprising of 8.50 acres without prior permission of the competent authority which would be in violation of Section 136(1) and Section 178 of the TLR & LR Act. The petitioner should explain the position within 15 days. The petitioner replied to the notice on 27th April, 2012 and contended that petitioner cannot be termed as an intermediary and Section 136 of the TLR & LR Act was, therefore, not applicable. It was further pointed out that under Section 178(1) exemption was envisaged for growing of tea, coffee as well as rubber. No penal action can, therefore, be taken for undertaking such permissible activity. Further detailed reply was filed by the petitioner on 29th March, 2013. The Revenue Secretary passed impugned order on 3rd August, 2013 holding that the petitioner had utilised 95.12 acres of the tea estate land for rubber plantation and, therefore, the order for retention and exemption with respect to the said area of 95.12 acres was withdrawn under Section 178(4) of the Act. This order the petitioner has challenged in this petition.
Page - 12 of 33 [D] In WP(C)No.366/2013, the petitioner Adarini Tea Estate(TE) is the holder of 348.78 acres of land situated in Village - Debendra Chandranagar of Sadar Sub-Division. With respect to this land, Commissioner of Revenue had passed an order on 24th February, 1975 granting exemption under Section 178(1) from the ceiling provision of Section 164 of the TLR & LR Act. A notice was issued to the petitioner by the Sub-Divisional Magistrate on 25th July, 2008 pointing out that a portion of the tea garden land was diverted for rubber plantation without the prior permission of the competent authority which was in breach of Section 20 of TLR & LR Act. The petitioner should show cause why such land shall not be resumed by the Government. The petitioner replied to the said show cause notice under communication dated 28th August, 2008 and contended that there was no breach of Section 20 of the TLR & LR Act since no part of the land has been diverted for any other purpose. The Revenue Secretary thereupon passed impugned order dated 6 th August, 2013 withdrawing the retention and exemption orders under Sections 136(1)(f) and 178(1) of the TLR & LR Act in relation to land admeasuring 1.10 acre which was occupied by rubber plantation. [E] In WP(C) No.369/2013, the petitioners are individuals who are owners of land occupied by Kalkalia Tea Estate with respect to which the Page - 13 of 33 Commissioner of Revenue had passed an order on 4th November, 1975, allowing the owners to retain 113.04 acres of such land in terms of Section 136(1)(f) of TLR & LR Act and further, in terms of the Section 178(1) of the Act, exempting the land from the ceiling provision of Section 164. The exemption under Section 178 of the Act was on the condition that the tea garden should show definite improvement within a period of 2 to 3 years in matters of expansion etc. failing which the exemption would be withdrawn. According to the authority, though exemption and retention order was passed for 113.04 acres of land for tea plantation, since long such tea plantation is limited to 102.46 acres only. This, according to the authority, was in breach of the conditions of exemption. A show cause notice was, therefore, issued on 4th April, 2013 and after hearing the petitioners, the Secretary Revenue passed the impugned order dated 20th July, 2013 in which he withdrew the exemption with respect to 10.58 acres of the land on the ground that such area was occupied by rubber plantation which amounted to diversion of the land from the main purpose of tea plantation. This order has been challenged in the writ petition.
[F] In WP(C) No.370/2013, the petitioner S.R.P Projects Private Limited is the owner of the tea estate land having purchased the same in Page - 14 of 33 the year 2007 from the erstwhile owners. With respect to this land, the Revenue Commissioner had passed an order dated 5 th November, 1975 allowing retention of 575.68 acres under Section 136(1)(f) and also exempted the said land from ceiling provision in exercise of powers under Section 178(1) of the TLR & LR Act. A show cause notice was issued on 4th March, 2013 on the ground that out of the total land holding, 109.98 acres has been brought under rubber plantation which is in breach of the exemption granted under Section 178 of the Act. On 13th August, 2013 the Revenue Secretary passed the impugned order and withdrew the retention and exemption order with respect to 109.98 acres of land for the alleged violation.
[G] In WP(C) No.616/2015, the petitioner Luxmi Tea Company owns lands situated in Jagannathpur in Kailashahar Sub-Division. The Commissioner of Revenue had passed an order dated 23 rd July, 1975 allowing retention of such land under Section 136(1)(f) and exemption from ceiling provision in terms of Section 178(1) of the TLR & LR Act to the extent of 1150.12 acres of the land. On the premise that the petitioner had violated the terms and conditions of the retention and exemption order, show cause notice was issued to the petitioner for withdrawing the exemption. After hearing the petitioner, the Revenue Secretary passed an Page - 15 of 33 order dated 9th November 2015 withdrawing the retention order with respect to 29.05 acres of land which was found to be under rubber cultivation. This order, the petitioner has challenged in the present petition.
[3] In background of such facts, learned counsel for the petitioners had argued that the authorities had committed serious error in withdrawing the retention and exemption orders with respect to portion of the lands of the petitioners. According to them, there was no breach of any of the conditions committed by the petitioners. The Revenue Secretary, therefore, could not have recalled the earlier order of exemption. It was argued that once a land is allowed to be retained in terms of Section 136(1)(f) of the TLR & LR Act, there was no provision under the Act for recall of such an order. With respect to withdrawal of the exemption from the ceiling provision, it was argued that there was no condition in the exemption orders that the holder of the land cannot carry out rubber plantation. In fact, the rubber plantation was also permissible for exemption from the ceiling provision prior to 2014 when the Section 178 was amended. It is not the case of the respondents that any rubber plantation was carried out after the said amendment. The said amendment is prospective and cannot apply to any plantation of rubber trees carried Page - 16 of 33 out before the amendments. It was argued that entire land of a tea estate cannot be covered by tea plantation. Some areas and slops are not suitable for tea plantation. If such portions of land are utilised for the purpose of rubber plantation which was also a permissible use till amendments were made in Section 178 of the Act in the year 2014, the same cannot be termed as a breach of the exemption order. Essentially thus the contention of the petitioners was that there was no breach of any of the conditions of the exemption orders and that the exemptions, therefore, could not have been withdrawn.
[4] On the other hand, learned counsel appearing for the Government have opposed the petitions and writ appeals contending that the petitioners were allowed to retain the lands for the purpose of tea plantation. All the petitioners are companies or individuals engaged in the business of cultivating and manufacturing tea. These tea gardens were allowed to retain certain areas of lands specifically for the purpose of growing tea. Even the exemption under Section 178(1) of the Act granted by the Revenue Commissioner was for this purpose only. When it was found that land of the tea garden was diverted for other purposes, there was a clear case of breach of the condition of exemption.
Page - 17 of 33 [5] In view of such background, we may refer to the relevant provisions contained in TLR & LR Act. To introduce land reforms in the Union Territory of Tripura with a view to provide for abolition of intermediaries, regulation of rights of owners and tenants, fixation of ceilings of existing holdings and for acquisition and prevention of fragmentation as also to consolidate and codify the laws governing the land revenue administration in the said territory, the TLR & LR Act was enacted and was published in the official Gazette on 22nd September, 1960. Section 2 of the TLR & LR Act is a definition clause. Clause (b) contained in Section 2 defines agriculture to include horticulture, raising of annual or periodical crops or garden produce, dairy farming, poultry farming, stock breeding, grazing and pisciculture. Term "basic holding"
has been defined in Clause (c) of Section 2. As per Clause (s) of the Section 2, "raiyat" means a person who owns land for purposes of agriculture, paying land revenue to the Government and includes the successors-in-interest of such person.
[6] Section 20 of the TLR & LR Act which is contained in Chapter III pertains to diversion of land. Sub-section (1) of Section 20 provides that if any person holding land for any purpose wishes to divert such land or any part thereof to any other purpose except agriculture, he shall apply Page - 18 of 33 for permission to the competent authority who may, subject to the provisions of the said Section and the rules made under the Act, refuse permission or grant it on such conditions as it may think fit. Sub-section (4) of Section 20 provides that if any land has been diverted without permission by the holder or by any other person with or without consent of the holder, the competent authority, on receiving information thereof, may impose on the person responsible for the diversion a penalty not exceeding Rs.50,000/- and may proceed in accordance with the provision of sub-section (1) as if an application for permission to divert has been made.
[7] Chapter XI which pertains to acquisition of estates and of rights of intermediaries therein; falls under Part IV. Section 133 contained in the said chapter contains definitions of certain terms for the purpose of the said part. Term "intermediary" is defined in Clause (c) of Section 133 as to mean a person who holds in an estate the right, title or interest of a Talukdar and includes a person who holds land either revenue-free or at a concessional rate and a tenure holder. Term "tenure holder" in turn is defined in Clause (e) of Section 133 as to mean a person who has acquired from any intermediary the right to hold lands for the purpose of collecting rents or bringing them under cultivation by establishing tenants thereon.
Page - 19 of 33 [8] Section 134 of the TLR & LR Act pertains to notification vesting estates in the State. Sub-section (1) of Section 134 provides that as soon as may be after the commencement of the Act, the State Government may, by notification in official Gazette, declare that with effect from the date specified in the notification to be referred to as a vesting date, all estates situated in any area or areas and all rights, title and interest of every intermediary in such estates shall vest in the Government free from all encumbrances. For further emphasis and clarity, Section 135 provides that notwithstanding anything contained in any law for the time being in force or any agreement, contract, express or implied, with effect from the vesting date all rights in the estate would vest in the Government free from encumbrances. As per Clause (d) of Section 135 subject to other provisions, every tenant holding any land under an intermediary shall hold the same directly under the Government as a raiyat or as a non- agricultural tenant, as the case may be and would pay land revenue to the Government.
[9] Section 136 which has been invoked in the present case pertains to rights of intermediary to certain lands. As per sub-Section (1) of Section 136, notwithstanding anything contained in Sections 134 and 135 an intermediary shall subject to the provisions of sub-section (2) be Page - 20 of 33 entitled to retain with effect from the vesting date; as per clause (f) "so much of the lands comprised in a tea garden mill, factory or workshop as in the opinion of the State Government is required for such tea garden, mill, factory or workshop." Sub-section (2) of Section 136 provides that an intermediary who is entitled to retain possession of any land under sub- section (1) shall hold such land directly under the Government from the vesting date as a raiyat or as a non-agricultural tenant, as the case may be and would be liable to pay land revenue at the applicable rates. [10] As per sub-section (1) of Section 137, the Collector would take charge of the estates and interests of intermediaries which vest in the Government under Section 135.
[11] Section 160 which is contained in Chapter XII which falls in Part IV provides that where, as a result of the operation of this part (i.e. Part IV), any person acquires the right to hold land either as a raiyat or an under-raiyat, the provisions of Part III shall, as far as may be, apply to the determination of such right and in such application, any reference in the said part to the commencement of the Act, shall be construed as a reference to the vesting date.
Page - 21 of 33 [12] Chapter XIII of the TLR & LR Act is under Part V and pertains to ceiling on land holdings. Section 163 is a definition provision defining the terms "ceiling limit", "family" etc. Section 164 provides that on and from 24th January 1971 no person shall, whether as a raiyat or as an under- raiyat or as a mortgagee or with possession or otherwise or partly in one capacity or the other, hold in aggregate any land in excess of the ceiling limit applicable under Section 164A. Section 164A in turn prescribes ceiling limits under different circumstances. Section 169(1) provides that where any excess land of a raiyat is in actual possession, such land shall vest in the Government.
[13] Section 178 is a Government's power of exemption, relevant portion of which reads as under :
"178. Power to exempt, etc. - (1) The [State Government] may, on an application made to him in this behalf within three months from the commencement of this Act, exempt from the operation of section 164 -
(a) any land which is being used for growing tea, coffee including lands used or required for use for purposes ancillary to, or for the extension of, the cultivation of tea, coffee to be determined in the prescribed manner;
[Provided that no tea garden land shall be used for the purpose of rubber plantation].
.................................
Page - 22 of 33
(e) any land which is being held by a co-operative society, provided that where a member of any such society holds a share in such land, his share shall be taken into account in determining his ceiling limit:
.................................
(4) Where any land, in respect of which exemption has been granted under sub-section (1) or sub-section (2) or sub-section (3), ceases to be used, or is not within the prescribed time used, for the purpose for which exemption had been granted, the [State Government] may, after giving the persons affected an opportunity of being heard, withdraw such exemption and all the provisions of this chapter relating to ceiling on land holding will be applicable."
[14] From these provisions, one can gather that with introduction of the TLR & LR Act by virtue of the provisions made in Chapter XI, the intermediary as a class was abolished and the Government stepped into the shoes of the intermediary. All land holdings by individuals under different capacities, virtually continued in the same fashion, however as a raiyat or under-raiyat of the Government instead of an intermediary which may be the situation previously prevailing. As noted, as per Section 134(1), upon commencement of the Act and by issuance of a notification by the Government, all estates situated in the particular area covered by the notification would vest in the Government free from all encumbrances. Section 135 brings about this intention in more emphatic manner. While doing so, the legislature kept a small area where the Page - 23 of 33 intermediary would be allowed to retain the land holdings but as a raiyat or under-raiyat of the government as envisaged under Section 136(1) of the Act. We may recall, as per sub-section (1) of Section 136 notwithstanding anything contained in Sections 134 or 135 an intermediary would be allowed to retain the land, besides others; so much of the lands comprised in a tea garden mill, factory or workshop as was in the opinion of the Government required for such tea garden mill, factory or workshop.
[15] Undoubtedly thus, even for an intermediary to retain any part of the land under this provision, an application to the Government and an order by the Government permitting such retention is necessary. Application of Clause (f) of sub-section (1) of Section 136 is not automatic and depends on the formation of the opinion by the Government that so much of the area is required for the purpose of tea garden or purposes incidental to a tea garden. However, in the present case, what is of crucial importance is, would this Section be applicable to the petitioners at all? In our opinion, the administration has proceeded on entirely erroneous footing, passing retention orders in favour of the petitioners under Section 136(1)(f) of the TLR & LR Act. Such retention orders were necessary if the land was held by an intermediary but not Page - 24 of 33 otherwise. For the purpose of the said part, as noted, term "intermediary" is defined as to mean a person who holds in an estate the right, title or interest of a Talukdar including a person who holds land either revenue free or at a concessional right and a tenure holder. There is nothing on the record to suggest that the petitioners were holding the land revenue free or as tenure holders. It is, therefore, a misconception to pass an order allowing the petitioners to retain the land under Section 136(1)(f) of the Act. Barring in one case, we do not find any application made by any of the petitioners for retention of the land when the TLR & LR Act was introduced. We may recall, the Act was introduced in the year 1960. The Revenue Commissioner had passed the orders of retention in the year 1975. In almost all cases this was done perhaps without any application from the petitioners land holders. Significantly, these are hybrid orders allowing retention of the land under Section 136(1)(f) and exempting it from the provisions of ceiling under Section 164 in exercise of power under Section 178(1) of the Act. We will refer to alleged breach of condition of exemption under section 178 later. However, at this stage, we can conclude that there was no question of passing orders for retention of the lands under section 136 of the Act, and hence, the question of any breach of condition of the retention order would not arise. Whether for Page - 25 of 33 any alleged breach of the condition the retention order can be recalled or cancelled, is a question we would not go into.
[16] This brings us to the question of exemption from the ceiling provision. As noted, Section 164 of the Act would prohibit a person from holding land in excess of the ceiling limit. Under Section 178, however, the Government could exempt any land or part thereof from the operation of the said provision. As per clause (a) of sub-section (1) of Section 178, such exemption could be granted in case of any land which is being used for growing tea or coffee, including lands used or required for use of the purposes ancillary to or for extension of the cultivation of tea or coffee. This clause also contained rubber alongside tea and coffee prior to its amendment w.e.f. 20th March, 2014. These amendments simultaneously provided that no part of tea estate will be utilised for rubber plantation. Prior to 20.3.2014, however, there was no such embargo. Thus, before 20th March, 2014 even rubber plantation qualified for consideration of exemption by the Government from the ceiling provision. In the present group of cases, the bone of contention of the administration is that the petitioners had utilised part of the tea estate for growing rubber plantation. If this amounts to a breach of condition of exemption, surely under sub- section (4) of Section 178, the Government can recall the exemption Page - 26 of 33 order. However, this aspect has two elements. First, as noted, even rubber plantation qualified for consideration for exemption of the land from the ceiling provision prior to 20th March, 2014. Secondly, in majority of cases before us, the exemption orders which the Revenue Commissioner had passed, did not contain a condition that the land under exemption would be utilized only for the purpose of tea plantation. It is not the case of the administration that the rubber plantation was made after 20th March, 2014. In all cases, the notices and proceedings initiated long before 20th March, 2014 clearly indicating that there was existing plantation when the amendment in Section 178 deleted the words "or rubber" from sub-section (1). The amendment in Section 178(1) was clearly prospective and did not require a land holder to remove existing rubber plantation if the exemption under ceiling limit was granted before 20th March, 2014. In absence of any express of implied condition in the exemption order that the land shall be used only for growing tea or that the exemption was granted only for growing tea, presence of rubber plantation which existed prior to 20.3.2014 cannot be considered as a breach of condition and consequently a ground for cancellation of exemption. [17] Since in one of the orders the authority has relied on Section 20 of TLR &LR Act, we may deal with the same. As noted, as per Section Page - 27 of 33 20(1), any holding land for any purpose wishes to divert the land for any purpose other than agriculture, he would have to apply to the competent authority for permission. If any land has been diverted by the holder without such permission, he would invite consequences mentioned in Sub-section (4) of Section 20. Section 20 and in particularly Sub-section (1) thereof refers to a situation where the land is to be diverted for any purpose other than agriculture. This provision will have no application when the land use continues to remain for agriculture. [18] These broad observations and conclusions will have to be applied to individual cases as per fact situation.
[19] In case of WA No.18/2018 filed by Borgang Tea Company, exemption under Section 178 has been withdrawn with respect to 158.81 acres of land which comprised of 10.30 acres of land which according to the authorities, was vacant and 148.51 acres which was covered under rubber plantation. With respect to the rubber plantation, as we have held, in the present case there cannot be cancellation of exemption from ceiling provision. For remaining area of 10.30 acres since the show case notice preceding the order of cancellation of exemption is not on record, it is not possible for us to gather whether any such specific allegation of not developing the land to the said extent was made. Under the circumstances, Page - 28 of 33 the impugned order of cancellation of exemption is set aside, however, it would be open for the authorities to re-commence the proceedings for the said portion of land by issuing a fresh show cause notice which may, however, be done on the basis of presently prevailing situation. [20] With respect to WA No.40/2016 filed by Fortuna Agro Plantations, the authority came to the conclusion that there was diversion of land to the extent of 35.08 acres for saw mill and 257.27 acres for rubber plantation. In view of our conclusions in the judgment, there would be no cancellation of exemption for the land occupied by rubber plantation. With respect to the existence of saw mill, learned counsel for the petitioner had submitted before us that in connection with the proceedings before the Supreme Court, saw mills were relocated. The saw mill in question, is not operated by the petitioner and was relocated under the Government order. According to him, therefore, existence of the saw mill on the tea estate cannot be seen as a breach on part of the petitioner. While setting aside the impugned order of cancellation of exemption dated 6th October, 2012 it is left open to the authorities to examine this aspect of the reason for existence of the saw mill. If, prima facie it is found that the petitioner's contention is not correct and the authorities still wish to proceed against the petitioner qua the land occupied by the saw Page - 29 of 33 mill, it would be open for the competent authority to issue a fresh show cause notice and pass appropriate order in accordance with law after giving opportunity of hearing to the petitioner.
[21] In WP(C) No.332/2013, the order under Section 178(1) of TLR & LR Act was passed with respect to a portion of land of the petitioner. There was no condition that rubber plantation may not be carried out without the leave of the authority. The order of cancellation of the exemption was based on the allegation that the petitioner had carried out rubber plantation over a portion of land admeasuring 95.12 acres. This order is, therefore, set aside.
[22] In case of WP(C) No.366/2013, exemption under Section 178(1) of the Act was granted without any condition of not growing rubber plantation on any part of the estate. Impugned order was passed cancelling exemption in relation to 1.10 acres of land on the ground that the same was occupied by rubber plantation. This order is, therefore, set aside. [23] In case of WP(C) No.369/2013, exemption under Section 178(1) of the Act was granted without any condition of prohibiting rubber plantation. Order of cancelling the exemption was passed on the ground that major portion of the land is occupied by rubber plantation which was Page - 30 of 33 in breach of the exemption granted. Here also, in absence of any condition in the exemption order prohibiting plantation of rubber or any such plantation prior to the amendment in Section 164, the exemption could not have been withdrawn. The said order is, therefore, set aside. [24] In WP(C) No.370/2013 nothing is brought on record to suggest that the exemption under Section 178(1) was granted only for the purpose of tea garden and rubber plantation was prohibited. The impugned order has been passed on the ground that subsequently it was found that a portion of the land was covered by rubber plantation which was in breach of the exemption granted under Section 178. When no condition can be read into the exemption order prohibiting plantation of rubber, the said order is set aside.
[25] In WP(C) No.616/2015, exemption was granted under order dated 23rd July, 1975 which is an elaborate reasoned order, as can be seen from the order which reads as under :
"23-7-75.
Sarvasree P.K. Das, Managing Director and A. K. Sinha, Manager of Manu Valley Tea Co. Ltd., appeared. Govt. side was represented by Sarvasree L. M. Naha, Deputy Director of Surveys & Land Records, T. N. Chakraborty, Astt. Director of Surveys and Land Records, A. L. Majumder, Asst. Survey Officer & R. R. Page - 31 of 33 Sinha, Labour Officer. Sarvasree H. D. Chakrborty, Provident Fund Inspector, N. B. Das, General Secretary, Tripura Cha Majdoor Union, and s. R. Choudhury Convenor, INTUC, Tripura Branch also appeared.
2. The Managing Director stressed that the total area of 670.188 hectares (1656.01 acres) including jote land 29.875 hectares (73.82 acres) and land purchased by them from Anila Tea Garden should be allowed to be retained by the Tea Garden. He said that he had drawn up plan accordingly for development and expansion. The planted area stands 142.859 hectares (353.00). The Tea Board has given a blanket clearance that retention orders might be issued up to a ratio of 1:2 depending upon the merits of individual cases.
3. The garden is a good garden as per Tripura standards. There is no problem either with the labour or with the management. There are claims form the landless people for land from out of the Tea Garden. Jugged form this angle as well as from the ratio prescribed by the Tea Board it may be possible to allow the retention of additional area other than the Standard requirement. The garden has about 80.94 hectares (about 200.00 acres) of paddy land including jote land.
4. Retention order may issue allowing the garden to retain 465.454 hectares (1150.12 acres) of taluki land under Section 136(1)(f). Exemption be given for a total area of 495.329 hectares (1223.94 acres) u/S 178 including jote land of 29.875 hectares (73.82 acres).
5. An area of 174.859 hectares (432.07 acres) should be resumed including the land occupied by landless to the tune of 137.85 acres. The taluki area of 465.454 hectares (1150.12 acres) allowed for retention includes 10.078 hectares (24.90 acres) of Anita Tea Garden land purchased by the Manu Valley.
Page - 32 of 33 The tea garden may exercise their option within one month towards surrendering land excluding that occupied by the landless.
Order may issue."
Thus, this order refers to the application by the company suggesting that the exemption was specifically for the purpose of tea garden and its development and expansion. It was pointed out that the planted area was 142.859 hectors (353.00 acres) and the Tea Board had recommended the retention of the land in the ratio of 1:2. The contention of the tea garden was recorded that it was a garden in good condition and there are no problems of labour or its management. Exemption under Section 178 was granted for 1223.94 acres of land, however, noticing that part of the land was used for growing paddy and other purposes, an area of 432.07 acres was ordered to be resumed.
This order was thus specific and was for the purpose of development and expansion of existing tea garden. The basis for making application and for acceptance of such an application was that already a tea garden existed and there was scope for expansion. The company had also relied on the opinion of the Tea Board and that in such cases retention order in the ratio of 1:2 may be granted. Actuated by such factors, the competent authority had given exemption. This exemption Page - 33 of 33 thus was specifically for the purpose of development and expansion of tea garden.
The authority later on found that 29.05 acres out of this land was converted into rubber cultivation. It may be that such rubber plantation may have been carried out prior to the amendment in Section 164 in the year 2014. Nevertheless, any such diversion of the land for rubber plantation would go against the very basic purpose for grant of exemption under Section 178 which was specifically for the purpose of development and expansion of tea garden. Exemption either for tea or rubber was always discretionary and would depend on the justification that may be made out. In the present case justification offered and accepted was for maintaining and expanding tea garden. Such order is, therefore, upheld. Petition is dismissed.
[26] With these observations and directions, all the appeals and petitions are disposed of. Pending application(s), if any, also stands disposed of.
( S G CHATTOPADHYAY, J ) ( AKIL KURESHI, CJ ) Sukehendu