Decided on September 29,1983



MOOKERJEE, J - (1.) The Petitioner no. 1, Company, claims to be the owner of Girish Chandra Tea Estate situated in the District of Darjeeling. The petitioner No. 2 is a Director and shareholder of the petitioner no. 1, Company. The petitioner no. 1, Company, has been carrying on, inter- alia, business of growing tea plants and of plucking and selling green tea leaves. In this Rule, the petitioners have challenged the validity of levy upon green tea leaves of Rural Employment Cess under the West Bengal Rural Employment and Production Act, 1976 (West Bengal Act XIV of 19713.)
(2.) Mr. Sitesh Roy, learned advocate for the petitioner has, interalia, submitted that the West Bengal Rural Development and Production Act, 1956, imposes said Cess not upon the land comprised in tea estates but upon tea dispatched from the garden and, therefore the said legislation does not come within the ambit of Entry No. 49, List- II tin the 7th Schedule of the Constitution of India. According to Mr. Roy, the Parliament has the exclusive power to make laws in respect of said matter and the West Bengal Rural Employment and Production Act, 1976 being, beyond the legislative competence of the West Bengal Legislature, is ultra vires. The learned advocate for the petitioners has also submitted that the provision of the said Act and the Rules and Notifications made thereunder relating to levy and collection of Cess in respect of despatches of green tea leaves are arbitrary, discriminatory, unreasonable and also amount to fraud on statute. The said provision also unreasonably restrict the petitioner no.' 2's Fundamental Rights guaranteed under Article 19 (1) (g) of the Constitution. Mr. Roy has lastly submitted that the Act imposes unresonable restrictions on freedom of trade, commerce and intercourse in respect of green tea leaves and amendments to the Act made without the prior approval of the President of India are invalid. Mr. Bajoria, learned advocate for respondents, has contested the correctness of the aforesaid submissions made on behalf of the petitioners and has contended that the said Act and the Rules and Notification made thereunder are intra vires.
(3.) In order to decide whether in pith and substance the West Bengal Rural Employment and Production Act, 1976 imposes a tax on land or on tea trade, I may first examine some of the main provisions of the said Act and also refer to the Rules and Notifications made thereunder. The preamble of the impugned Act (West Bengal Act XIV of 1976), inter-alia, states that it has been enacted to provide for additional resources for promotion of employment in rural areas and for implementing rural production programme. All proceeds of the tax collected under the Act shall be credited to the fund called the West Bengal Rural Employment and Production Fund which has been established under section 5(1) of the Act. The section 6 of the Act provides that the said Fund would be utilised for implementation of rural production programme and for promotion of employment in rural areas. The said Fund would be administered in such manner as may be prescribed. For deciding this Rule it is not necessary to deal with section 3(1) of the Act which imposed surcharge on land revenue payable under section 23B of of the West Bengal Land Reforms Act. Section 4(1) of the said Act, as originally enacted, laid down that on and from the commencement of the said Act, all immovable properties on which road and public works cess are assessed according to the provisions of the Cess Act 1880, shall be liable to pay rural employment cess. After section 4(1) was amended by section 7 of the West Bengal Taxation Laws (Amendment) Act, 1981 (West Bengal Act IX of 1981), Rural Employment Cess is payable on all immovable properties which are assessed or are liable to be assessed for road and public works cess.;

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