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Tripura High Court · body

2016 DIGILAW 77 (TRI)

Fortuna Agro Plantations Ltd. v. State of Tripura

2016-03-18

S.TALAPATRA

body2016
JUDGMENT : By means of these writ petitions, being WP(C) No.509 of 2012 (M/S Fortuna Agro Plantations Ltd & Another versus The State of Tripura & Others) and WP(C) No.55 of 2013 (M/S Dilkhusa Tea Co. Ltd. versus The State of Tripura & Others), the petitioners have challenged the order dated 06.10.2012, Annexure/4 to the writ petition and the memorandum dated 03.11.2012, Annexure/6 to the writ petition [in WP(C) No. 509 of 2012] and the order dated 06.10.2012, Annexure/3 to the writ petition and the memorandum dated 03.11.2012, Annexure/4 to the writ petition [in WP(C) No. 55 of 2013]. It is to be noted that the order dated 06.10.2012 has been passed by the Secretary to the Government of Tripura, Revenue Department, the respondent No.2 and the said memorandum has been issued by the same respondent No.2. The order dated 06.10.2012, hereafter would be referred to as the impugned order and the memorandum dated 03.11.2012, similarly would be referred to as the impugned memorandum. 2. The petitioners are the owner or the lessee of the tea estate under the name and style of Dilkhusa (Murtichara Tea Estate). There is no dispute that the petitioners were granted exemption under Section 178(1) of Tripura Land Revenue and Land Reforms Act, 1960, TLR & LR Act in short, by the orders dated 23.08.1975, Annexure-2 to both the writ petitions. For purpose of reference, Section 178(1) of TLR & LR Act is reproduced hereunder: “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 or rubber including lands used or required for use for purpose ancillary to, or for the extension of, the cultivation of tea, coffee or rubber to be determined in the prescribed manner; [Provided that no tea garden land shall be used for the purpose of rubber plantation]. (b) Omitted. (c) Omitted. (d) Omitted. (b) Omitted. (c) Omitted. (d) Omitted. (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 : Provided that the [State Government] may entertain the application after the expiry of the said period of three months, if he is satisfied that the applicant was prevented by sufficient cause from making the application in time: [Provided further that any person intending to establish a tea garden shall have to apply to the State Government in the same method as provided under sub-section (1)(a) of section 178 of the Act and the rules made thereunder and acquire and hold land in excess of the ceiling area applicable in section 164A]. (2) Where any land in respect of which exemption has been granted to a person under sub-section (1) is transferred to another person, the [State Government] may, on an application made to him within three months from the date of the transfer, exempt the transferee from the operation of section 164 and section 173 and the provisions of the said clause shall, as far as may be, apply to the grant of such exemption. (3) Where the [State Government] is of opinion that the use of land for any specified purpose is expedient or necessary in the public interest, he may, by notification in the Official Gazette, make a declaration to that effect and on the issue of such notification, any person may, notwithstanding anything contained in section 173, acquire land in excess of the ceiling limit for being used for such specified purpose and such person shall, within one month from the date of such acquisition, send intimation thereof to the competent authority. (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]. (5) No land, in respect of which exemption has been granted under sub-section (1) or (3) of this section, shall be transferred without prior written approval of the State Government.] Explanation.-For the purpose of this section, “transfer” shall have the same meaning as in section 168.]” 3. It is to be noted clearly that by the TLR & LR (Amendment) Act, 2014 which has come into effect from 20.03.2014, from the clause (a) of sub-section (1) of section 178 of the TLR & LR Act after the word “coffee”, the word “rubber” has been deleted and proviso appearing below the said clause (a) has been inserted. This deletion has no doubt become effective from 20.03.2014 and not retrospectively. As such, section 178(1)(a) did contain the word “rubber” after the word “coffee” till 19.03.2014. The land therefore under cultivation of tea, coffee and rubber prior to 20.03.2014 was eligible for exemption under section 178(1) of the TLR & LR Act. 4. The proceeding, being 03/Rev/PS/2010 under section 178(4) of the TLR & LR Act, 1960 was drawn against the petitioners for diverting the land under cultivation of tea by establishing saw mill and raising rubber and teak plantation. The petitioners were allowed to retain a vast area of land measuring 849.87 hectors (2,100 acres) at mouja Murticharra, Samarurpar and Manuvalley under Kailasahare Sub-Division under section 136(1) of the TLR & LR Act. Exemption from ceiling limit was granted under Section 178(1) of the TLR & LR Act. Such exemption from the provisions under Section 164 of the Act was given on condition that the tea estate should register definite improvement in the management of the garden and on developing the said area with proper utilisation of the land within a period of three years from the date of issuance of the exemption order. In the event of any failure in this regard, exemption order as issued would be withdrawn. From the report of the District Magistrate and Collector, North Tripura, as it then was, it appeared that a saw mill has been set up in the area of Murticharra tea estate and there is diversion of land measuring 35.08 acres for rubber plantation, whereas the total land measuring 257.27 acres was utilised for tea plantation. As such for violation of the order dated 23.08.1975, the proceeding under Section 178(4) of TLR & LR Act was drawn up. 5. As such for violation of the order dated 23.08.1975, the proceeding under Section 178(4) of TLR & LR Act was drawn up. 5. After hearing the parties at length, on waiving the objection that the petitioners being the company incorporated under the Companies Act, 1956 cannot be brought under the purview of the Section 164 of the TLR & LR Act, the following order has been passed on 06.10.2012, by the respondent No.2 : “To him the order of retention is infructuous. But the instant case has been initiated for diversion of land and for violation of the provisions of 178(1) of the TLR & LR Act, 1960. Based on the report of DM & Collector, North Tripura (presently remanded as Unokati) and the deliberation of Ld. Advocate on behalf of the Fortuna Agro Plantation I am of the opinion that the Proprietor Dilkhusha (Murticherra) Tea Estate and its leassee Fortuna Agro Plantation violated the provision of section 178(1) and as such the exemption granted vide No. 29(Tea)/62-63 dated 23.07.1975 is hereby withdrawn.” 6. In view to the said order dated 06.10.2012, M/S Fortuna Agro Plantations Ltd. the petitioner No.1 in WP(C) No.509 of 2012, and the lessee of M/S Dilkhusa Tea Company Ltd., in whose favour exemption under Section 178(1) of the TLR & LR Act was granted, made an application before the respondent No.2 contending that the whole exemption has been withdrawn on considering that the land under such exemption “ceases to be used”, but not considering “land already used”. While passing the order, relevant provision of TLR & LR Rules, 1961 was not been followed and it has been further asserted that the entire land has been utilised in view of Rule 211 of the TLR & LR Rules, 1961. Without considering the said application, the District Magistrate and Collector, Unokati District, Kailasahar issued the impugned memorandum dated 03.11.2012 as stated above, communicating the following : “As per decision of the Revenue Department, Govt. Of Tripura, the exemption of retention against Murticherra Tea Estate has been withdrawn by the Order dated 6.10.2012 passed by the Secretary, Revenue Department in Case No. 03/Rev/PS/2010 U/S 178(4) of TLR & LR Act, 1960. Hence, the entire Tea Garden land measuring 2066.00 acres (existing total area) should be reverted to Khas land. Of Tripura, the exemption of retention against Murticherra Tea Estate has been withdrawn by the Order dated 6.10.2012 passed by the Secretary, Revenue Department in Case No. 03/Rev/PS/2010 U/S 178(4) of TLR & LR Act, 1960. Hence, the entire Tea Garden land measuring 2066.00 acres (existing total area) should be reverted to Khas land. According to the Ceiling unit prescribed in section 164(1) of TLR & LR Act, 1960, beyond 7.20 Standard Hectare will be treated as surplus land and hence the SDM, Kailashahar is directed to declare the said area of Murticharra Tea Estate as Khas land excluding 7.20 Standard Hectare and correct the land records.” 7. Being aggrieved by the order dated 06.10.2012 and the memorandum dated 03.11.2012, the owner of the tea estate, in whose favour the exemption was granted, and the lessee filed these writ petitions as stated and hence those have taken up for hearing together for disposal by a common judgment. 8. Mr. D.K. Biswas, learned counsel appearing for the petitioner has submitted that raising of certain species of trees in order to prevent soil erosion was essentially required in the areas which were not suitable for cultivation. By the letter dated 02.04.1996 Dr. G.S.G. Ayyangar, the District Magistrate and Collector, West Tripura District asked for inquiry and permission for plantation of those species of trees. The said letter was addressed to the Sub-Divisional Officer, Kailasahar, North Tripura. The said Sub-Divisional Officer in response thereto wrote a letter to the Divisional Forest Officer on 09.04.1996 requesting him to issue permission for plantation of other species of trees to the Manager, Murticharra Tea Estate. The Divisional Forest Officer, Northern Division, Kailasahar had replied by his letter dated 12.03.1997 on observing as under : “In response to your above quoted letter under reference this is to inform you that the matter was inquired into. It is seen that signs of sheet erosion is there all over the area of Samrucherra tea and Murticherra tea with a degraded and depleted form of forest cover. Gulley erosion and land slips are also not uncommon. There are also signs reduce water flow through the perinneal streamlets flowing through the area with ever increasing rate deposition of silt on the beds of the streams and streamlets. Going by local evidence it seems that the ground water table is also gradually sinking. Gulley erosion and land slips are also not uncommon. There are also signs reduce water flow through the perinneal streamlets flowing through the area with ever increasing rate deposition of silt on the beds of the streams and streamlets. Going by local evidence it seems that the ground water table is also gradually sinking. It is thus apparent that the conservation of soil and water in the area is an essential need at the moment for improvement of the ecology and maintenance of the ecological balance. The existing degraded form of vegetative cover is incapable of achieving it. It will, therefore, be beneficial if the existing depleted and degraded form of vegetative cover is replaced by good forest cover with Teak, Gamar, Sal, Garjan etc. forest pp together with underplanting/planting of bamboos, herbs, shrubs and vines to provide effective protective cover of the soil conserving soil and water. It will not only maintain and uphold the ecology, it will also put the land to productive use to its highest capability contributing to the economy. The proposal is also welcome step towards the national objective of bringing more and more areas under trees cover. In the context of the ground realities, national objectives and Govt. Policy it is considered that permission may be accorded for planting forestry species like Teak, Gamar, Sal, Garjan, Karia, Mahagony, Chama, Bamboos, medicinal plants, under planting of cash crops etc. to have the maximum benefit in terms of improvement of ecology, soil and water conservation, rural employment and economy.” 9. It is evident from the letter dated 01.04.1995, the stick stamps were sold to the petitioners as per rules. Based on those documents, Mr. Biswas, learned counsel for the petitioners has strongly contended that the teak plantations as raised were so raised with due permission of the authority. As such, there cannot be any finding that the petitioner violated the conditions of exemption. Mr. Biswas, learned counsel has further submitted that from the order dated 03.12.1962, delivered in the proceeding under Section 136(1)(F) of the TLR & LR Act, it is evident that : “After enquiry it now appears that the tea garden possession 2552.44 acres of land. As such, there cannot be any finding that the petitioner violated the conditions of exemption. Mr. Biswas, learned counsel has further submitted that from the order dated 03.12.1962, delivered in the proceeding under Section 136(1)(F) of the TLR & LR Act, it is evident that : “After enquiry it now appears that the tea garden possession 2552.44 acres of land. The garden had got no excess land under its possession.” Thereafter by the order dated 23.08.1975 an area of land measuring 849.87 hectares (2100.00 acres) of Mouja Murticharra was allowed to be retained by the tea estate with the condition that improvement, development and proper utilisation should take place within a period of three years. 10. It appears from the records that on 15.05.1997 Murticherra Tea Estate under the petitioners had applied to the Government for allowing exemption under Section 178(2) from the ceiling under Section 164 of the TLR & LR Act, but no such exemption was granted. It appears that the said prayer dated 15.05.1997 was camouflaged and no action was taken. Rather on the basis of an inquiry, a proceeding was drawn under section 178(4) of the TLR & LR. Act. 11. Mr. Biswas learned counsel has submitted further that the impugned order dated 06.10.2012 did not take care of all these documents as placed before this court. But this court could not ascertain whether those documents were at all filed before the respondent No.2 in the proceeding. Mr. Biswas, learned counsel however has contended that the breach of exemption does not mean that it would entail the entire property vested in the Government, rather the exemption from ceiling would become inoperative. As a result, ceiling proceeding under section 164 of the TLR & LR Act would follow allowing opportunity to the owner to retain the preferred part of the land. In absence of such proceeding the entire tea estate as stated cannot be declared khas land as has been done by the memorandum dated 03.11.2012. 12. Mr. D. Chakraborty, learned senior counsel appearing for the respondent Nos.1, 2 and 3 has partly supported the contention of Mr. D.K. Biswas, learned counsel that without ceiling proceeding under Section 164 of the TLR & LR Act, the entire estate cannot be declared vested in the Government. However, Mr. Chakraborty, learned senior counsel has submitted that the exemption was granted for cultivation of tea. By raising rubber, teak etc. D.K. Biswas, learned counsel that without ceiling proceeding under Section 164 of the TLR & LR Act, the entire estate cannot be declared vested in the Government. However, Mr. Chakraborty, learned senior counsel has submitted that the exemption was granted for cultivation of tea. By raising rubber, teak etc. the petitioners have violated the conditions of exemption. Hence they are liable to be proceeded under Section 178(4) of the TLR & LR Act. Thus he defended the order dated 06.10.2012 as passed by the respondent No.2. 13. By the order dated 11.03.2016 this court directed the respondents to produce all the relevant records commencing from granting of exemption to the final order passed by the Revenue Secretary on 06.10.2012, but no such record could be produced except the proceeding records. 14. From the application dated 20.12.1962, Annexure-1 to the writ petition, being WP(C) No.55 of 2015, it appears that exemption under Section 178(1) of the TLR & LR Act was sought for the tea estate. The relevant part of the said application dated 20.12.1962 is extracted hereunder for purpose of reference : “That the Tea Estate is in possession of 2550.68 acres of land as recorded upto the stage of Bujarat of the present survey to settlement operation. That the Tea Estate is utilising the lands as shown below at present:- i. Planted area (under tea)-370.08 ii. Building, labourers, factory, ponds etc-43.79 iii. Private road – 7.76 iv. Bazar (hat) -.42 v. Paddy land allotted to the labourers in lieu of ration – 176.61 Grand Total -598.66 It is seen that the garden is in possession of surplus land measuring 1952.02 acres in this connection I am submitting a scheme how the surplus land will be utilised in near future. i. Extension of plantation within 5 year already sanctioned by the Tea Board-175.00 ii. Extension of plantation within next 5 years-200.00 iii. Area required for re-plantation-100.00 iv. Land required for construction of new labourers quarter-77.00 v. Land required for growing sungrasses for thatching or labours quarter-200.00 vi. Tilla & jungle lands required for fuel & bamboos as coal is not available, Jungle & trees help very much in attracting heavy rain fall which is necessary for growing tea plants-1100.02 vii. Area required for re-plantation-100.00 iv. Land required for construction of new labourers quarter-77.00 v. Land required for growing sungrasses for thatching or labours quarter-200.00 vi. Tilla & jungle lands required for fuel & bamboos as coal is not available, Jungle & trees help very much in attracting heavy rain fall which is necessary for growing tea plants-1100.02 vii. Grazing land-100.00 Total-1952.02 In the circumstances I fervently pray your honour kindly to allow us to retain as mentioned above under section 136(1)(f) of the Tripura Land Revenue & Land Reforms Act 1960 and oblige.” 15. If the said application and the order dated 23.08.1975 is read together, it would transpire without any ambiguity that the exemption was prayed for cultivation of tea and not for teak or rubber. In the order dated 23.08.1975, Annexure-2 to the writ petition, being WP(C) No.55/2015, the submission of the authorised representative of the petitioner company has been recorded clearly as under: “Shri Agarwala said that he had already invested Rs. 8.50 lakhs in the Tea Garden from 1967 and that he was only incurring loss till 1973 and that he had finalised plans to invest another Rs. 8.00 to Rs.10.00 lakhs for the development of the Garden. He, therefore, prayed that the entire recorded area of 1070.9 hectares (2646.39 acres) should be allowed to be retained by the Tea Garden.” 16. Therefore, there was no exemption for cultivation of rubber or for extension thereof. It has not been denied by the petitioners that they have raised rubber plantation on the exempted land without permission. Even there had been no permission from the competent authority i.e. State Government for raising teak plantation. The State Government is usually represented by the governor and by the Rules of Executive Business powers are delegated to the designated secretaries to represent the state government. The Secretary to the Government of Tripura, Revenue Department represents the State Government in the matter of exemption and the State Government alone can give exemption on the condition as deemed appropriate. As such, for granting exemption neither the District Collector nor the Sub Divisional Officer/Magistrate nor the Divisional Forest Officer has any power to pass any order for plantation without prior sanction of the state government over the land, covered by exemption under Section 178(1) of the TLR & LR Act. As such, for granting exemption neither the District Collector nor the Sub Divisional Officer/Magistrate nor the Divisional Forest Officer has any power to pass any order for plantation without prior sanction of the state government over the land, covered by exemption under Section 178(1) of the TLR & LR Act. Hence, the so called official record for planting teak is not exemption by the state government. That apart, it appears from the writ petition being WP(C) No. 509 of 2012 that M/S Agro Plantation Ltd., the petitioner No.1 has obtained a lease for 99 years from 1997. Since taking over in 1997, the said petitioner has been running the garden for cultivation of the tea and rubber. There had been no exemption for cultivation of rubber and not a piece of paper has been submitted in this regard. As discussed above, the exemption was solely granted for cultivation of tea. Moreover, lease is a transfer as defined in Section 105 of the Transfer of Property Act, 1982 which reads as under : “A lease is a transfer of a right to enjoy such property, made for certain time, express or implied, or in perpetuity, in consideration of a price prayed or promised, or of money, a share corps, service of any other thing or value to be rendered periodically or on specified occasion to the transfer by the transferee, who accept the transfer on such terms.” 17. It is not clear whether there was any permission in terms of Section 178(2) or not. However this aspect did not fall for consideration before the Secretary, Revenue Department. Even if it is considered, the State Government being the competent authority by de facto doctrine may preserve the order of teak plantation passed by or at the instance of the District Collector, the Sub-Divisional Officer and the Divisional Forest Officer, then also clear breach of the conditions of exemption is manifest in the admission of the petitioner No.1 in WP(C) No. 55 of 2013 as well as in the inquiry report and that report has not been challenged by either of the petitioners. 18. Hence, the finding returned by the impugned order dated 06.10.2012 that the petitioners have violated the conditions of exemption granted by the order dated 23.08.1975, [wrongly recorded as 23.07.1975] does not call for any interference. 18. Hence, the finding returned by the impugned order dated 06.10.2012 that the petitioners have violated the conditions of exemption granted by the order dated 23.08.1975, [wrongly recorded as 23.07.1975] does not call for any interference. But this court is of the opinion that the impugned memorandum dated 3.11.2012 is entirely unsustainable in law as there had been no determination of the land which can be retained by the petitioner, namely Dilkhosa Tea Estate or whether at all Dilkhosa Tea Estate is entitled to retain any land after the ceiling proceeding as provided under Chapter XIII (Part-V) of the TLR & LR Act. 19. It is further to be determined that if the exemption order is withdrawn, whether the petitioners will have any right including the intermediary right to retain the permissible area of land or not. Leaving all these issues unanswered, issuance of the memorandum dated 03.11.2012 observing that beyond 7.20 standard hectare the remaining land will be treated as surplus and on such premises, direction to the SDM, Kailasahar for declaring the Murticharra Tea Estate as khas land excluding 7.20 standard hectare or for correcting the land records, is unsustainable in law, inasmuch as in terms of Section 165 of the TLR & LR Act every person who retained land in excess of the ceiling limit on 24th January, 1971 shall submit to the competent authority in the prescribed form and within such period as the State Government may by notification in the official gazette appoint, a return giving the particulars of all land held by him indicating therein the persons of the land not exceeding the ceiling limit which he desires to retain. The last date of submission was fixed for purpose of Section 166 of the TLR & LR Act on 28.02.1974. But the discretion had been left to the competent authority to accept the return on assigning reasonable cause since sub-section (3) of Section 166 of the TLR & LR Act provides that if the persons fail to comply the notice of the Collector in declaring the ceiling surplus land without offering him any further opportunity, the Collector may take possession. 20. In this case, after the withdrawal of the exemption order no such notice to Dilkhosa Tea Estate was issued for submitting the return within a specified period but the Collector has passed the impugned memorandum which is absolutely beyond his competence. 21. 20. In this case, after the withdrawal of the exemption order no such notice to Dilkhosa Tea Estate was issued for submitting the return within a specified period but the Collector has passed the impugned memorandum which is absolutely beyond his competence. 21. As consequence thereof, the said memorandum dated 03.11.2012 is set aside. On the basis of the order dated 06.10.2012, Dilkhosa tea estate would be provided opportunity of filing their return for retaining their preferred land and for declaring the ceiling surplus land to be vested with the government by passing the appropriate order. Only thereafter the consequential order on the basis of the return or for non filing of the return may be passed by the competent authority i.e. the District Collector. 22. Having observed thus, these writ petitions are partly allowed to the extent as indicated above. There shall be no order as to costs.