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Malhati Tea Syndicate Limited Vs. Revenue Officer, Jalpaiguri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 151 of 1971
Judge
Reported inAIR1973Cal78,[1973]43CompCas337(Cal)
ActsWest Bengal Estates Acquisition Act, 1954 - Section 42, 42A, 42(3) and 42(4); ;West Bengal Estates Acquisition (Amendment) Act, 1969; ;Bengal Cess Act, 1880 - Sections 38 to 40; ;Bengal (Rural) Primary Education Act, 1930 - Sections 29(2) and 30; ;Companies Act, 1956 - Section 23(3); ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantMalhati Tea Syndicate Limited
RespondentRevenue Officer, Jalpaiguri and ors.
Appellant AdvocateP.N. Mitter, ;Pritish Chandra Roy and ;Uma Prasad Mukherjee, Advs.
Respondent AdvocateManindra Chandra Chakrabarty, Adv.
DispositionAppeal dismissed
Cases Referred(State of West Bengal v. Khayarbari Tea Co. Ltd.
Excerpt:
- .....depuly commissioner, jalpaiguri, notified the manager of the tea estate on april 13, 1967 that rent, cess and education cess had been determined in respect of tea estate under section 42(ii) of the estates acquisition act. this notice is annexurc 'g' to the petition. after stating that rent, cess including education cess had been determined, the notice requested payment of the amount set out thereunder within may 31, 1967, failing which action for realisation of the dues would be taken. this notice appears to communicate a determination in respect of cess. to us it seems that this notice is misleading because there was no determination of cess by the additional deputy commissioner; statutory provisions regarding cess, public work cess and education cess are such that a determination.....
Judgment:

B.C. Mitra, J.

1. The appellant is the owner of a tea garden in the district of Jalpaiguri. On December 9, 1937, the then Governor of Bengal granted a lease of 1268.85 Acres of land in Touzi No. 410, in the district of Jalpaiguri, commonly known as Malhati Tea Estate, under Chapter V of the Bengal Waste Lands Manual, 1936, in favour of the appellant, for a term of 30 years with effect from April 1, 1932, on yearly rent of Rs. 2760.12. Some other note lands were also settled with the lessee as a part of the tea estate. On expiry of the term of 30 years, the appellant obtained renewal of the lease from year to year, the last of such renewal having been made in March 1965, for the year 1965-66. Under these yearly renewals, the appellant is entitled to renewal of the 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 West Bengal Estates Acquisition Act, 1953, hereafter referred to as the Act, would be binding on the lessee. The State Government also retained the right to impose such conditions as it may, from time to time, find it necessary. The State Government allowed the appellant to retain the entire area in the tea estate under Section 6(3) of the Act by an order dated October 10, 1963.

2. The Revenue Officer started proceedings under Section 43(2) and Section 42-A of the Act for fixation of rent payable by the appellant in respect of the tea estate. In this proceeding the Revenue Officer by an order dated November 12, 1965, fixed the rent at Rs. 8,334.26. In this order there was nothing to indicate that the amount fixed by the Revenue Officer included Road Cess and Public Works Cess of Rs. 366.98 and Education Cess of Rs. 1,373.16. The inclusion of the Cess of different kinds was made clear in a memorandum dated February 22, 1966, issued by the Additional Deputy Commissioner. The assessment of rent and Cess as above was to take effect from November 1965. Under the original lease the rent payable was Rs. 2,760.12, Road and P. W. Cess was Rs. 614.12 and Education Cess was Rupees 723.76.

3. On April 19, 1967, a demand was sent to the appellant for Rs. 59,150.97 towards arrears of rent and a sum of Rupees 6,527.01 for arrears of Education Cess. This demand was on the basis of determination made under Section 42(2) of the Act. Retrospective effect was given to this determination with effect from the date of vesting namely, April 14, 1955.

4. On April 29, 1967, the appellant Was informed that unless the arrears claimed were paid, the renewal of the lease could not be granted. As the appellant did not pay the demand, a Certificate was issued for a total claim of Rs. 99,184.64. Being aggrieved by the issue of the Certificate, the petitioner applied for a Rule Nisi under Article 226 of the Constitution for setting aside the order of determination of rent by the Revenue Officer dated November 12, 1965, the memorandum of the Deputy Commissioner, Jalpaiguri dated February 22, 1966, intimating such determination of the demand dated April 19, 1967, and the Certificate dated November 29, 1967. A rule Nisi was issued and the trial Court made this Rule absolute in part. The revision of liability for Cess made in proceedings under Section 42(2) of the Act was set aside and declared void. The appellant's prayer as against the assessment of rent was refused. The claim in so far as it related to Cess including Education, Road and P. W. Cess and the Certificate issued for the same, were set aside. The Certificate dated November 29, 1967, was quashed and a writ in the nature of Mandamus was issued directing the Deputy Commissioner not to give effect to or enforce the demand dated April 19, 1967, and the Certificate dated November 29, 1967. This appeal is directed against this order and the respondents have also filed cross-objections against the order relating to Cess and the Certificate issued for realisation of the same.

5. Appearing for the appellant Mr. P. N. Mitter argued that the word 'Estate' had not been defined in the Act and that by virtue of Section 2(p) of the Act, the definition of that word in the Bengal Tenancy Act was to be applied. He relied upon the opinion of the learned authors M. Finucane and Ameer Ali in their Commentary on the Bengal Tenancy Act at p. 58, on which reliance was placed by the trial Court (See 74 Cal WN 825 at p. 835). He argued that tea planters in Jalpaiguri were not proprietors of any estate under the Act, but were lessees, who were entitled to renewal of their lease on terms specified in such leases. He also argued that the lands covered by tea leases were part of the Khasmahal estates, let out to tenants on the terms contained in the leases. The tenures held by the lessees of Tea Estates were not, it was argued, estates within the meaning of the Bengal Tenancy Act. He submitted that since the appellant did not hold any estate as contemplated by the Bengal Tenancy Act, it was not an intermediary within the meaning of the Act. He next referred to the definition of the word 'Estate' in Section 3(4) of the Bengal Tenancy Act. This definition says that 'an estate means land included under one entry in any of the general Registers of revenue paying lands and revenue-free lands, prepared and maintained by the Collector of a Disttrict, and includes Government Khasmabal and revenue free lands not entered in any Register.' Relying on this definition of Estate Mr. Milter argued that the tea estates were not included in the general Register of Revenue-paying lands and revenue-free lands. Reliance was also placed on Rule 27 of the Bengal Waste Lands Manual, 1936, which rays that every lease granted, shall he entered as a separate Government estate in a Touzi Roll and in Register 32, Part III.

6. The next contention of Mr. MIttes was that, even if Bengal Tenancy Act applied to lea gardens, the land comprised in such gardens could not be held to be an estate, as such land had not been included in a general Register. He argued that the lands were waste lands which were leased out by the State Government to the petitioner, and therefore it could not be said that it was an estate as contemplated by the Act

7. The next branch of the argument ton behalf of the appellant was that Section 6(3) of the Act made a clear distinction between an intermediary and a lessee. He argued that it was true that under Section 6(3) of the Act, lessee might be treated as an intermediary but that could be done only for the limited purpose of assessment of compensation and for no other purpose. That being so, it was argued, the appellant could not be treated to be an intermediary for the purpose of assessment of rent by the Revenue Officer. He also relied upon an unreported Bench decision of this Court in Civil Rula No. 2552 of 1968 (Cal), (State of West Bengal v. Khayarbari Tea Co. Ltd.) in which it Was held that the Revenue Officer under the Act had no jurisdiction to determine the rent of a tea garden and hence could not exercisee his powers under Section 42-A of the Act. He, therefore, argued that the Revenue Officer had no jurisdiction to determine the rent payable by the appellant under Section 42 of the Act and the application of Section 42-A of the Act was also excluded.

8. The next contention on behalf of the appellant was that the Act was amended by the West, Bengal Estates Acquisition (Amendment) Act, 1969, and sub-sections (3) and (4) were added to Section 42 of the Act. Sub-section (3) is as follows:---

'Notwithstanding anything to the contrary contained in the proviso in Sub-section (2) of Section 6 or in any contract, where any land comprised in any tea garden is held under a lease, the rent payable by the lessee in respect of such land shall be the rent determined by the Revenue Officer in the manner specified in sub-section (2)'.

9. It was argued that the legislature for the first time conferred upon the Revenue Officer, the power to determine the rent payable by a tea garden held under a lease. This Amendment, it was argued, was not retroactive in operation and therefore the impugned assessment orders must be held Jo be invalid. In other words, it was argued that admittedly the Revenue Officer under the Act had no power to determine the rent payable by a lessee of a tea garden until tho Amendment of the Act in 1969. It was only by that Amendment that such power was conferred upon the Revenue Officer, and that being the position, it was argued, the assessment orders must be struck down, as having been made without any jurisdiction. There Would have been a good deal of force in this contention on behalf of the petitioner but for the provisions in Sub-section (4). The Amendment Act also added a sub-sec. (4) to Section 42 which runs as follows:--

'Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court or Tribunal or in any law, the rent determined under Sub-section (2) or sub-section (3) shall take effect and shall be deemed always to have taken effect from the date of vesting.'

10. Mr. Mitter submitted that subsection (4) of Section 42 was introduced in order to nullify the effect of the judgment of this Court in Civil Rule No, 2552 of 1968 (Cal) (Supra). He argued that the whole object of this Amendment was to undo the effect of the judgment in that case and is confined only to judgments, decrees and orders of a Court or Tribunal. In this case, it was further argued, there was no such judgment, decree or order before the Amendment, and therefore Sub-section (4), as amended, had no application. We are unable to accept this contention on behalf of the appellant. The new Sub-section (4) not only contemplates judgments, decrees or orders of a Court or Tribunal but also any law that existed before the Amendment was introduced. The result, as we see it, is that where a determination of rent had been made by a Revenue Officer under the law, as it stood before the Amendment, such determination should be deemed always to have taken effect from tho date of vesting. Therefore, the legislature not only gave the Revenue Officer the power to determine the rent of tea gardens, held under a lease by Sub-section (3) but it went very much farther and provided by Subsection (4) that even if under the law, as it existed before the Amendment a determination of rent had been made, such a determination should take effect and should be deemed to have taken effect from the date of vesting. This provision in our view, validates the determination of rent by the Revenue Officer, even if such determination was made without jurisdiction. This, it seems to us, is the effect of Sub-section (4) which was introduced by the 1969 Amendment of the Act. It will not, in our view, be appropriate to ignore or overlook the words 'in any law' in subsection (4) of the Act.

11. Mr. Chakarbarti appearing for the respondents contended that the appellant was a Raiyat and, as such it became an intermediary under Section 52 of the Act. He relied upon a Bench decision of this Court reported in 33 Cal WN 362, for the proposition that having regard to the Rules framed relating to the Western Duars, the State Government in such temporarily settled estates had the power to frame Rules which had the force of law. I do not, however, see how this decision is of any assistance to the respondents in this case. Furthermore, having regard to our views, with regard to Sub-section (4) of Section 42 of the Act, we do not think it is necessary for us to go into the question whether the appellant is a Raiyat and as such an intermediary under Section 52. In passing however, I should note that Mr. Chakrabarti drew our attention to Rule 40 of the Rules in the Bengal Waste Lands Manual which says that the Raiyat must pay its rent on the due date. It was argued that lessees under the said Manual were raiyats and as the appellant was a lessee under the Manual, he was a Raiyat, and therefore came within Section 52 of the Act. As I said earlier, in the view that we have taken of Subsection (4) of Section 42 of the Act, it is not necessary for us to go into that question.

12. I now proceed to deal with the cross-objection filed by the respondents. The trial Court held that Section 42(1) and (2) and Section 42-A of the Act did not confer any authority or prescribe any mode for effecting any revaluation or re-assessment for any liability for Cess'. It was also held that Section 42 of the Act, in its different subsections and clauses laid down the manner, in which the rent in the ordinary sense of the term was to be assessed, and such provisions could have no application in the matter of assessment of Cess. The conclusion, to which the trial Court arrived, was that Section 42 conferred no authority on the Revenue Officer to revise any liability for Cess and that in any event, any such revision would require revaluation in the manner set out in the Cess Act, which had not been followed in this case. It was, therefore, held by the trial Court that the purported revision or re-assessment of the Cess in the proceedings under Section 42(2) of the Act was illegal and void and the Certificate in respect of the Cess, based on such revision or re-assessment was equally illegal and unauthorised.

13. The original liability of the appellant for Road and P. W. Cess was Rupees 614-12 and for Education Cess it was 'Rupees 723.76. The revised demand for Cess for Road and P. W. Cess is Rs. 366.98 and for Education Cess Rs. 1373.16. In support of his contention that the revised demand for Cess is lawful and the Certificate issued for realisation of the same is valid, Mr. Chakrabarti submitted that under the Cess Act, Cess merely followed the fixation of Rent. The rate being fixed by Statute, it was argued, there is neither any occasion for determination, nor for revision of liability for Cess. Mr. Chakrabarti relied upon the definition of Kent in Section 2(o) of the Act, which says that rent includes any money, recoverable under any enactment for the time being in force as if it was Rent. The contention of Mr. Chakrabarti was that no fresh determination was needed for re-assessment of Cess. He referred to the various provisions in the Cess Act, by which the rale was fixed and argued that as soon as there was assessment or re-assessment of rent, re-assessment of the liability for cess followed, as a matter of course, on the basis of the rate fixed in the Cess Act.

14. It seems to us that there is a good deal of force in this contention of the learned Advocate for the respondents. Section 38 of the Cess Act lays down the manner in which the roads cess for each year is to bo assessed and levied. Section 39 of the Cess Act lays down the manner in which public works cess is to be assessed and levied. Section 40 of the Cess Act requires publication of the cess fixed for any particular year. In accordance with the requirement of this section notifications were, published on April 5, 1966 regarding roads cess and public works cess. Similar notifications were published on January 19, 1967 and April 25, 1968. In these notifications it is stated that the publication was made pursuant to Section 40 of the Cess Act in accordance with the determination of the cess made under Sections 38 and 39 read with Section 6 of the Cess Act. It seems to us that the Cess Act is a comprehensive self-contained code which lays down the manner in which the cess is to be determined. In this case the determination of the cess has been made in accordance with Ihe provisions in the Cess Act. There are similar provisions in the Bengal (Rural) Primary Education Act, 1930 for levy of education cess. Section 29 (2) of this Act provides that primary education cess shall be levied at the rate of 5 pice on each rupee of annual value of land. Section 30 deals with the payment of cess.

15.. Taking into consideration the above provisions of the Cess Act and the Bengal (Rural) Primary Education Act it seems to us that no determination of cess is necessary for the purpose of making a lawful demand for realisation of the snmc. Once the annual value of land is determined, the demand for road, public works and education cess is fixed in accordance with the statutory provisions. Neither the Cess Act nor the Bengal (Rural) Primary Education Act requires a determination of cess covered by the two statutes. Once the land revenue is fixed, the liability for cess is determined by statutory provisions and no assessment order for cess of either variety is either contemplated or required by statute. In that view of' the matter it seems to us that the contentions of Mr. Chakrabarty regarding cess must be Upheld.

16. It appears that the Additional Depuly Commissioner, Jalpaiguri, notified the Manager of the Tea Estate on April 13, 1967 that rent, cess and education cess had been determined in respect of Tea Estate under Section 42(ii) of the Estates Acquisition Act. This notice is Annexurc 'G' to the petition. After stating that rent, cess including education cess had been determined, the notice requested payment of the amount set out thereunder within May 31, 1967, failing which action for realisation of the dues would be taken. This notice appears to communicate a determination in respect of cess. To us it seems that this notice is misleading because there was no determination of cess by the Additional Deputy Commissioner; Statutory provisions regarding cess, public work cess and education cess are such that a determination of the liability of a lessee for cess is not called for. The liability for cess is ascertained and arises immediately upon determination of the annual value of the land. The two statutes have created the liability for cess and have also prescribed the rate at which cess is to be calculated. In our view the Trial Court was in error in holding that a revaluation or re-assessment of liability for Cess is necessary and that sub-sections (1) and (2) of Section 42 as also Section 42-A of the Estates Acquisition Act do not confer any authority or prescribe any mode for effecting any revaluation or re-assessment of liability for cess. As soon as rent is determined by a Revenue Officer under the Estates Acquisition Act, and upon such determination the rent is either increased or decreased, the liability for cess in respect of the holding stands increased or reduced in accordance with the increase or reduction in the liability for rent. The statute docs not require that cess has to be determined either by the Revenue Officer or by the Collector or any other officer upon a determination of the rent. As I said earlier cess follows rent and when the rent is increased or reduced, there is a corresponding increase or reduction in the liability for cess by operation of law.

17. In our view, for the reasons mentioned above, and without anything more, this appeal ought to be dismissed and the cross-objection ought to be allowed. But such an order cannot be made, and I now proceed to refer to a matter which should be taken into consideration in disposing of this appeal and the cross-objection.

18. The arguments in support of the appeal arid the cross-objection concluded on February 16, 1972. Immediately after the conclusion of the arguments, an application was moved on behalf of the appellant for an order that the cause title of the writ petition (Civil Revision No. 2549 (W) of 1967) and the cause title of the Memorandum of Appeal being F. M. A. T. No. 2684 of 1970 and the body of the writ petition as well as the body of the Memorandum of Appeal, be amended and that the name of the petitioner in the application be substituted for the name of the original petitioner, with liberty to continue or proceed or pursue the writ petition and the appeal preferred from the judgment dated July 3, 1970, and that the records and proceedings of the writ petition and the appeal be amended accordingly. There are also certain other prayers for consequential orders. The petition in support of this application is by Malliati Tea and Industries Ltd., (formerly known as Malhati Tea Syndicate Ltd.). In this petition, it is stated that on January 9, 1968, Malhati Tea Syndicate Ltd., made an application before this Court for alteration of the Memorandum of Association of the said company, and that a special resolution of the company was passed in accordance with Section 189 of the Companies Act, 1956, at an Extraordinary General Meeting of the said company, held on September 30, 1967. By the special resolution, three new sub-clauses were added to clause 3 of the Memorandum of Association of the said company. The substance of the alteration is that the company could engage in the business the Electrical and Mechanical Engineers, ., to Malhati Tea and Industries Ltd.

19. It is stated in the petition that an order was made by Ghosh, J., on February 12, 1968, confirming the alteration of Memorandum of Association of the said company. This order also provided that subject to the approval of the Central Government under Section 21 of the Companies Act, 1956, the name of the company should be changed from Malhati Tea Syndicate Ltd., to Malhati Tea and Industries Ltd. It appears from Annexure 'B' to the petition that the Registrar of Joint Stock Companies issued a certificate on May 3, 1968, that the name of the company be changed from Malhati Tea Syndicate Ltd. to Malhati Tea and Industries Ltd. It is stated in this Certificate that the approval of the Central Government has been accorded to this change. It is therefore clear that as from May 3, 1968, Malhati Tea Syndicate Ltd., ceased to be on the Register of the Joint Stock Companies and Malhati Tea and Industries Ltd., came into existence, and was placed on the Register of the Joint Stock Companies from that date. The trial Court delivered the judgment under appeal on July 3, 1970, and therefore long before that date, the company with its new name of Malhati Tea and Industries Ltd., mentioned above, came into existence. The Memorandum of Appeal was filed on February 10, 1971, but this Memorandum of Appeal was not filed by the company which was then on the Register of the Joint Stock Companies, namely Malhati Tea and Industries Ltd., but had been purported to be filed by Malhati Tea Syndicate Ltd., a name which had been removed from the Register of Joint Stock Companies as early as May 3, 1968.

20. There can. be no doubt that on the day on which the appeal was filed, there was no company in existence by the name of Malhati Tea Syndicate Ltd., and the appeal purported to have been filed by a company which was not on the Register of Joint Slock Companies, and had therefore no existence in accordance with the provisions of the Companies Act, 1956, cannot but be held to be incompetent. Learned Advocate for the applicant contended that the appeal was competent by reason of the provisions in subsection (3) of Section 23 of the Companies Act, 1956. That sub-section runs as follows:--

'The change of name shall not affect any rights or obligations of the company or render defective any legal proceedings by or against it; and any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name.'

21. We arc unable to accept this contention on behalf of the applicant. The first part of the sub-section protects the rights and obligations of the company, already acquired before the change of its name and also protects legal proceedings by or against it. The second part of the sub-section authorises the continuation of a pending legal proceeding which was commenced by the company in its former name. The second part provides that legal proceedings commenced by the company in its former name may be continued by the company after the change of its name. Nothing in this subsection authorised the company to commence a legal proceeding in its former name at a time, when it had acquired its new name which has been put on the Register of the Joint Stock Companies. In this case, the Memorandum of Appeal had been filed by the company in its former name, namely, Malhati Tea Syndicate Ltd., which was no longer on the Register of the Joint Stock Companies. We arc, therefore, of the view that the appeal itself is incompetent, as it has been purported to be filed in a name which is no longer there on the Register of the Joint Stock Companies.

22. In support of his contention learned Advocate for the applicant relied upon a decision of the Madras High Court reported in ILR (1954) Mad 533. In that case the question was whether execution proceedings could be conducted by a company in its new name in a case, where the decree was obtained by the company in its former name. This decision is of no assistance to the appellant in this case, inasmuch as, the commencement of the proceeding in this case has been made in a name which was not on the Register of the Joint Stock Companies.

23. In our view, the company could not commence the appeal in its former name, at a time when such name has ceased to be on the Register of the Joint Stock Companies, and a new name had been put on the Register. We do not see any reason or justification for not filing the Memorandum of Appeal in the name which was put on the Register of the Joint Stock Companies long before the appeal was filed. This appeal by the company in a name which has been removed from the Register of the Joint Stock Companies at the time when the appeal was filed is, in our view, incompetent.

24. Learned Advocate for the respondent contended that although the appeal is incompetent, the cross-objection should be treated to be competent and dealt with by Ibis court accordingly. We are unable to accept this contention either. This is not a case of dismissal of appeal for default, nor a case of withdrawal of the appeal. The appeal itself being incompetent, the cross-objection arising out of the same must also fail.

25. For the reasons mentioned above, the appeal and the cross-objection fail and both are dismissed. There will be no order as to costs.

P.B. Mukharji, C.J.

26. I agree.


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