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1970 Supreme(Cal) 149
HIGH COURT OF CALCUTTA
A. K. SEN
MALHATI TEA SYNDICATE LTD. - Appellant
Versus
REVENUE OFFICER - Respondent
. Of .
Decided On : July 8, 1970
J.M.BAKSHI, M.C.CHAKRAVARTY, MUKUL GOPAL MUKHERJI, NANI KUMAR CHAKRAVARTY, NEPAL CHANDRA SEN
The Revenue Officer has no authority to assess the cess under Section 42(2) of the West Bengal Estates Acquisition Act, 1953, as the assessment of cess is governed by separate statutory provisions.
Headnote:
WEST BENGAL ESTATES ACQUISITION ACT, 1953 - Section 42(2) - Applicability - Tea estate held under lease from Government - Whether intermediary - Rent and cess - Assessment - Retrospective effect.
Fact of the Case:
Petitioner, a lessee of a tea estate under the Government, challenged the assessment of rent and cess under Section 42(2) of the West Bengal Estates Acquisition Act, 1953, claiming that it was not an intermediary and that the Revenue Officer had no authority to assess the cess.
Finding of the Court:
1. The petitioner, as a lessee of a tea estate directly under the Government, was an intermediary within the meaning of the Act and Section 42(2) was applicable to it. 2. The Revenue Officer had no authority to assess the cess under Section 42(2) of the Act, as the assessment of cess was governed by separate statutory provisions. 3. The retrospective effect given to the assessment of rent from the date of vesting by virtue of the amendment to Section 42(4) of the Act was valid.
Issues: 1. Whether the petitioner, as a lessee of a tea estate directly under the Government, was an intermediary within the meaning of the West Bengal Estates Acquisition Act, 1953. 2. Whether the Revenue Officer had the authority to assess the cess under Section 42(2) of the Act. 3. Whether the retrospective effect given to the assessment of rent from the date of vesting by virtue of the amendment to Section 42(4) of the Act was valid.
Ratio Decidendi: 1. The definition of "intermediary" under Section 2(i) of the Act includes a lessee under the Government, and the explanation added to Section 6(3) by the Amending West Bengal Act 4 of 1957 clarified that "land held under a lease" includes "any land held directly under the State under a lease." Therefore, the petitioner, as a lessee of a tea estate directly under the Government, was an intermediary within the meaning of the Act and Section 42(2) was applicable to it. 2. Section 42(2) of the Act authorizes the Revenue Officer to determine the rent payable by an intermediary in respect of agricultural and non-agricultural lands, but it does not confer any authority to assess the cess. The assessment of cess is governed by separate statutory provisions, such as the Cess Act of 1880 and the Bengal Rural Primary Education Act, 1930. Therefore, the Revenue Officer had no authority to assess the cess under Section 42(2) of the Act. 3. The amendment to Section 42(4) of the Act, which provides that the rent determined under Section 42(2) or 42(3) shall take effect and shall be deemed always to have taken effect from the date of vesting, is a valid exercise of legislative power and does not violate any constitutional rights.
Final Decision: The revision or re-assessment of the cess liability of the petitioner purported to have been made in the proceedings under Section 42(2) of the West Bengal Estate Acquisition Act is set aside and declared void and inoperative. The petitioner's prayer as against the assessment of rent in the said proceedings is refused. The claim made by the Additional Deputy Commissioner on April 19, 1967, in so far as it relates to cess both education and road and P. W. as also the certificate are set aside.
( 1 ) THIS Rule, issued on an application under Article 226 (1) of the Constitution, raises an interesting point as to the extent of application of the provisions of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the said Act) to leases under tea grants made by the Government prior to the said Act.
( 2 ) ON December 9, 1937 the Governor of Bengal granted 1268. 95 acres of land in Touzi No. 410. Pargana - Chengmari, Police Station - Mal, Sub-registry - Moynaguri, District _ Jalpaiguri, commonly known as Malhati Tea Estate or tea lease under Chapter 5 of the Bengal Waste Lands Manual 1936 in favour of Malhati Tea Syndicate Limited for a period of 30 years with effect from April 1, 1932 on yearly rent of Rs. 2,760. 12 as. Some other jote lands were also settled with the said lessee as a part of the said tea estate. It is not in dispute that altogether an area of 1383. 43 acres were being held by the lessee constituting the tea estate under the Government when the said Act came into effect. The term of 30 years having expired, the petitioner to this Court, who came to own the said tea estate by subsequent transfer, obtained a few summary leases of renewal from year to year. The last of such renewal was made in the month of March 1965 for the year 1965-66. It is not in dispute that both under the original lease as also under the summary lease of renewal the petitioner lessee is entitled to further renewals. Clause 15 (1) of the last summary lease of renewal provides as hereunder: - ?the lessee shall be entitled to the renewal of this lease for a further period of one year or such period as the State Government may think fit subject to the reservation that the decision of the State Government under Section 6 (3) of the Estate Acquisition Act would be binding on the lessee, and to renewals for similar periods in perpetuity subject to the Rules and the terms and conditions of this lease and to such clauses as the State Government may from time to time find it necessary and on the renewal of a lease and subject further to such rent as may then be fixed provided that such additional clauses shall not be inconsistent with the law or the express conditions of the grant and shall not have retrospective effect. ?
( 3 ) ADMITTEDLY the petitioner was allowed by the State Government to retain the entire area of 1383. 43 comprising the tea estate under Section 6 (3) of the said Act. The order to that effect, dated October 10, 1963 is made annexure D to the petition.
( 4 ) THEREAFTER a proceeding under Section 42 (2) read with Section 42a of the said Act was started by the Revenue Officer for fixation of the rent payable by the petitioner in respect of the tea estate, allowed to be retained by the petitioner. In the said proceedings after hearing the parties including the petitioner, the Revenue Officer by his order dated November 12, 1965 determined the rent at Rs. 8334. 26. Although this order does not indicate anything to show that the Revenue Officer also determined the cess payable by the petitioner, it appears from the memorandum dated February 22, 1966 issued by the Additional Deputy Commissioner that what was determined was not only the rent but also the road and P. W. cess at Rs. 1,373. 16. The order and the aforesaid memorandum indicate that such fixation was to take effect from November 1965. Under the original lease rent payable was Rs. 2,760. 12 as, as referred to herein before and it is also not disputed that road and P. W. cess payable was Rs. 614. 12 and education cess payable was Rs. 723. 76.
( 5 ) ON April 19, 1967 the Additional Deputy Commissioner, Jalpaiguri, sent a demand to the petitioner calling upon it to pay a sum of Rs. 59,150. 97 towards arrears of rent and a sum of Rs. 6,527. 01 towards arrears of education cess. Such demand was made on the basis of the determination under Section 42 (2) of the said Act and giving retrospective effect to such determination with effect f
