Tripura High Court
A) Wa No.18/2018 vs The State Of Tripura Represented ... on 9 February, 2021
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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.
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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.
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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).
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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
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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
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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
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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
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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
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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.
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[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
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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
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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
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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
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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.
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[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
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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.
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[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
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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.
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[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].
.................................
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(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
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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
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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
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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
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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.
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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
