BORGANG TEA COMPANY PRIVATE LIMITED Vs. STATE OF TRIPURA
LAWS(TRIP)-2021-2-32
HIGH COURT TRIPURA
Decided on February 09,2021

Borgang Tea Company Private Limited Appellant
VERSUS
STATE OF TRIPURA Respondents

JUDGEMENT

Akil Kureshi, J. - (1.) 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 These exemptions under Section 178 of the Act are either partially or completely withdrawn by the impugned orders on the ground that the petitioners had violated the conditions of the exemptions.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 and 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 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 and 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 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 and 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 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 and 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 136(1)(f) of the TLR and 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 and 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 and 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. 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 and 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 and 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 and LR Act since no part of the land has been diverted for any other purpose. The Revenue Secretary thereupon passed impugned order dated 6th August, 2013 withdrawing the retention and exemption orders under Sections 136(1)(f) and 178(1) of the TLR and 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 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 and 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 the year 2007 from the erstwhile owners. With respect to this land, the Revenue Commissioner had passed an order dated 5th 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 and 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 23rd 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 and 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 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 and 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 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.;


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