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Bijaynagar Tea Co. Ltd. Vs. Indian Tea Licensing Committee - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata
Decided On
Reported inAIR1940Cal406
AppellantBijaynagar Tea Co. Ltd.
RespondentIndian Tea Licensing Committee
Cases ReferredSundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange
Excerpt:
- edgley, j.1. this is an appeal by the bijaynagar tea company ltd., against the order of the indian tea licensing committee, dated 14th october 1938, under which the crop basis of their estate was calculated to be 196524 lbs. similar appeals have been filed by the malhati tea syndicate ltd., and by the kadambini tea co. ltd., against the orders of the indian tea licensing committee under which the crop basis of those estates was fixed for the year 1938-39, but, as the points at issue between the appellant companies and the committee are the same in each of these cases, it has been agreed between the parties that these appeals will be governed by the decision in the appeal which has been filed on behalf of bijaynagar tea company ltd. both the parties to the present appeal have dispensed.....
Judgment:

Edgley, J.

1. This is an appeal by the Bijaynagar Tea Company Ltd., against the order of the Indian Tea Licensing Committee, dated 14th October 1938, under which the crop basis of their estate was calculated to be 196524 lbs. Similar appeals have been filed by the Malhati Tea Syndicate Ltd., and by the Kadambini Tea Co. Ltd., against the orders of the Indian Tea Licensing Committee under which the crop basis of those estates was fixed for the year 1938-39, but, as the points at issue between the appellant companies and the committee are the same in each of these cases, it has been agreed between the parties that these appeals will be governed by the decision in the appeal which has been filed on behalf of Bijaynagar Tea Company Ltd. Both the parties to the present appeal have dispensed with proof of the documents reproduced in the brief which has been prepared for the use of the Court and they have also agreed to admit in evidence the Administration Report of the Indian Tea Licensing Committee for the period from 1st April 1933 to 31st March 1938. The case for the Bijaynagar Tea Company Ltd., is to the effect that they have an area of 328.94 acres under tea which had been planted between 1926 and 1932; the major portion of the estate consisting of 280 acres had been planted in 1926-27 whereas the remaining portions had been planted in the succeeding years. The appellant company maintain that, contrary to the provisions of the Tea Control Act, 1938, they had been allotted an export quota for the year 1938-1939 on a crop basis of 1,96,524 lbs. only. This figure had been calculated in the following way:

(1) Maximum production in 1932. 1,34,948 lbs.(2) Statutory allowance for youngclearings under Schedule 1 to theRules under Section 23 of Act 24 of 1933 ... 19,576 lbs.(3) Allowance for special hardshipunder Rules 4 and 5 of theabovementioned Rules ... 42,000 lbs.--------------Total 1,96,524 lbs.

2. The company maintain that, upon a correct application of the principles laid down in Schedule 1 to Act 8 of 1938, their crop basis for the year 1938-39 would be as follows:

(a) Under Clause (1) of the Schedule to the Act:

(1) Crop basis for 1937-38 ... 1,96,524 lbs.(2) Allowance for speoial hard-ship determined under Rules 4 and 5 of the Rules under Section 23 of Act 24 of 1933 ... 42,000 lbs.(b)Under Clause (2) of the Schedule to the Act:Allowance for young areas, accor-ding to item 13 of Schedule 1, TeaControl Rules 1938, i.e. 328-98acres at 484 lbs. per acre ... 1,59,206 lbs.---------------Total 3,97,730 lbs.

3. The above claim is made on the assumption that Rule 4(b), Tea Control Rules, 1938, is ultra vires of the statute. On the assumption however that the abovementioned rule is intra vires, the company claim that they are entitled, in any event, to certain allowances for young areas calculated at several alternative rates which are mentioned in their statement of claim. In this connexion, it was admitted by the learned Advocate-General of Bengal during the course of his arguments that, if Rule 4(b) of the 1938 rule is found to be intra vires, the committee would be justified in deducting 19,576 lbs., on account of the statutory allowance for young clearings, from the figure of 28,014 lbs. mentioned in para. 18 of the statement of claim. His final contention as regards the allowance due to the estate under Clause (2) of the Schedule to the 1938 Act was that the estate would in any event be entitled to an allowance under this head, the amount of which would depend upon the view taken as to the deduction which might be made on account of (1) the yield which the young areas contributed to the production of the estate in 1932 and (2) the hardship allowance of 42,000 lbs. granted to the estate in 1937-38.

4. The main contentions of the Indian Tea Licensing Committee were as follows : As regards Clause (1) of the Schedule to the Act of 1938 the Committee's case is that the hardship allowance of 42,000 lbs. did not form part of the crop basis of the estate for the year 1937-38 within the meaning of Rule 1 of the rules made under Section 23, Tea Control Act (Act 24) of 1933. They maintain that this allowance had been made in respect of 280 acres of the estate which had been planted in the year 1926-1927 and, as the estate was not entitled to any allowance in respect thereof by the provisions of the Tea Control Act of 1933, there was a case of special hardship with regard to this area. On this ground the aforesaid special hardship allowance of 42,000 lbs. was allotted in respect of the said area and was added to the crop basis figure for the year 1937-38 making a total of 1,96,524 lbs. The committee further maintain that Rule 4(b), Tea Control Rules 1938, is intra vires of the statute and that the proper deductions had been made in accordance with the provisions of this Rule. The following issues were framed by this Court on 26th June 1939:

1. What is the initial figure which must be ascertained for the purpose of Clause (1) of the Schedule to Act 8 of 1938 with a view to the calculation of the crop basis of the estate for 1938-39?

1(a). For the purpose of calculating the figure under Clause (1) of the Schedule was the Committee bound to add (forty two thousand pounds) 42,000 lbs. hardship allowance to the figure - 1,96,524 lbs.?

2. To what allowance, if any, is the Company entitled in respect of young areas under Clause 2 of the Schedule to the Act?

2(a). In calculating allowances for young areas was the Committee entitled : (i) to deduct 1,31,192 lbs. as per item 13 of Schedule 2 to the Rules instead of 1,34,948 lbs. on account of the yield of the young areas to the production of the estate in 1932? (ii) to deduct the hardship allowance in respect of 82 acres planted in 1926 and 198 acres planted in 1927 and allotted in 1937-38, namely 42,000 lbs.? (iii) to deduct the young clearings allowance for 1937-38, namely 19,576 lbs.?

3. Is Rule 4(b), Tea Control Act of 1938, ultra vires? If so, in what respect?

3(a). If Rule 4(b) or a part thereof is ultra vires is the estate entitled to an addition for young areas calculated according to Schedule 1(13) to the Rules or to any other addition, and if so how calculated?

3(b). In calculating the crop basis of the estate was the Committee bound to add an allowance for young areas - 1,59206 lbs. without any deduction?

4. Was satisfactory evidence not forthcoming before the Committee as to the yield which the young areas concerned contributed to the production of the estate for the year 1932?

5. Was the crop basis of the estate for 1938-39 properly ascertained by the Committee?

6. To what relief, if any, is the appellant entitled 1

5. The first question for consideration is whether the Committee were correct in adopting 1,96,524 lbs. as the initial figure under Clause (1) of the Schedule to Act, 8 of 1938, for the purpose of calculating the crop basis of the estate for the year 1938-39. This clause is in the following terms:

The crop basis of a tea estate for each financial year shall on and from 1st April 1938 be the crop basis which was ascertained for such tea estate for the financial year 1937-38 or the highest figure fixed for any year after investigation by the Committee whichever be higher, in accordance with the rules under the Tea Control Act, 1933, with the addition of allowances for special hardship determined under Rules 4 and 5 framed under Section 23, Tea Control Act, 1933.

6. The main contention of the learned Advocate-General of Bengal is that for the purpose of this clause the Committee should have treated the figure of 1,96,524 lbs. as the ascertained crop basis of the estate for the year 1937-38 and should then have added the figure of 42,000 lbs. which was granted to the estate as a hardship allowance for the year 1937-38. The details of the crop basis figure which the Committee adopted for the purpose of Clause (1) of the Schedule are admittedly as follows:

lbs.(1) Maximum production for 1932 1,34,948(2) Statutory allowance for young clearings under the 1933 Rules ... 19,576(3) Special hardship allowanceunder Rules 4 and 5 of the1933 Rules ... 42,000--------------Total... 1,96,524

7. The contention of the learned Advocate-General therefore assumes that for the purposes of Clause (1) of the Schedule the estate is entitled twice to the benefit of the hardship allowance, namely once as being included in the ascertained crop basis for the year 1937-38 and again as an addition to this ascertained crop basis under the terms of the latter part of Clause (1) of the Schedule. On this point the contention of the learned; Advocate-General of India is that a hardship allowance could not be legally included in the crop basis under the 1933 Rules and it therefore follows that the expression 'crop basis which was ascertained for such tea estate in the financial year 1937-38' must refer to the crop basis figure which was ascertained for that year excluding any hardship allowance which may have been granted for the year in question. According to his argument the crop basis so ascertained would be

lbs.(1) Maximum production for 1932 1,34,948(2) Statutory allowance for young clearings under the 1933 Rules ... 19,576------------Total... 1,54,524

8. To the above figure would be added 42,000 lbs. (on account of the special hardship allowance granted to the estate in 1937- 38) in accordance with the latter portion of Clause (1) of the Schedule the resultant figure being 1,96,524 lbs. The correct determination of this question depends upon the construction of the rules framed by the Central Government under Section 23 of Act 24 of 1933. A question similar to the one which is now under discussion arose for consideration in Sundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange : AIR1939Cal508 and in my judgment in that case I made the following, observations:

Under the Act of 1933 it is clear that the expression 'crop basis of the estate' had a somewhat more restricted meaning than it has under the new Act of 1938. The expression is defined in the rules under the Act of 1933 as meaning

The maximum production of a tea estate in any one of the years 1929, 1930, 1931 and 1932 with addition of an allowance for young clearings on the scale set forth in Schedule 1.

Thus the crop basis of the estate clearly did not include hardship allowances which might be granted with the permission of the Governor-General in Council in accordance with the procedure prescribed in Rules 4 and 5.

(5) The main object of the application of the rules was to regulate the manner in which the export quotas of tea estates should be determined. Under Rule 4 the Committee were empowered in cases of special hardship and with the permission of the Governor-General in Council to modify the application of the foregoing rules, i.e. Rules 1 to 3. In other words, they might in cases of special hardship allot to a tea estate an export quota in excess of the proportion prescribed by Rule 2. The method which appears to have been normally followed in order to effect this purpose was to allot to the tea estate concerned a hardship allowance of a specified number of pounds over and above the crop basis figure, and then to calculate the export quota figure on the basis of the crop basis figure plus the hardship allowance. Although the Committee were in this way authorised to modify the application of Rules 1 to 3, they were not permitted to modify the rules themselves. It follows therefore that it would not have been open to them to include hardship allowances in the crop basis of a tea estate and thereby modify the definition of 'crop basis of a tea estate' which is contained in Rule 1(2). The intention clearly was that these hardship allowances should be entirely distinct from the crop basis and should be allowed in exceptional circumstances for the purpose of enabling a tea estate to obtain an export quota larger than that to which it would be entitled under the ordinary application of the rules.

9. The learned Advocate-General of Bengal asks me to reconsider the views which I expressed on this point in Sundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange : AIR1939Cal508 and, in this connexion, he has referred me to certain portions of the correspondence contained in the brief of the documents of the case with which we are now dealing and also to some passages in the Administration Report of the Indian Tea Licensing Committee for the period from 1st April 1933 to 31st March 1938. He maintains that these documents show that both the Central Government and the Committee, in fact, treated hardship allowances as being included in the crop basis of estates while the Act of 1933 was in force and he further maintains that, on a correct interpretation of the law, they were warranted in doing so. In support of his argument he places particular reliance upon Rule 2 of 1933 Rules, which is in the following terms:

The export quota of a tea estate shall be that amount of tea which bears the same proportion to the crop basis of the estate as the total Indian overseas export allotment bears to the total of the crop basis of all tea estates.

10. The learned Advocate-General argues that, until the total crop basis of all tea estates in India had been ascertained, it would be impossible to fix the export quota of a particular tea estate under the above-mentioned rule and, for the purpose of fixing the total crop basis figure for India, it would be essential to include not only the crop basis figures of all estates calculated in accordance with the provisions of Rule 1 but also any additional crop basis allowances which had been granted to estates which had been accorded special treatment under Rules 4 and 5 of the 1933 Rules. He maintains therefore that the power given to the Committee to 'modify the application of the foregoing rules' under Rule 4 meant that they might either calculate the crop basis of any estate according to the definition contained in Rule 1(2) or in any other way which they might consider suitable. In other words, he contends that the Committee might not only modify the application of the rules but altogether dispense with them or suspend their operation. The learned Advocate-General of India admits that, in fact, hardship allowances were included in the crop basis figures for the estates concerned while the Act of 1933 was in operation. He maintains, however, that this was done as a measure of practical convenience on account of a mistaken view of the law. He contends that the correct legal position with regard to this matter is expressed in the foregoing quotation from the judgment in Sundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange : AIR1939Cal508 and he asks me to re-affirm the views which. I adopted in that decision.

11. The object of the 1933 Rules was to provide a suitable basis of calculation for fixing the export quotas of tea estates. Circumstances might arise in which certain estates might deserve special treatment in this matter and, in my opinion, the special; treatment contemplated by Rule 5 can only refer to a temporary increase in the export quota to suit the particular circumstances of each case in respect of which an application for special treatment had been made to the Committee. The rules do not define the exact method to be followed either by the Central Government or by the Committee in according such special treatment to particular estates and it would therefore have been open to them to have adopted any method which they thought suitable for this purpose, provided such method was consistent with the provisions of the Act and the rules framed thereunder. For instance, there seems to have been no reason why it would not have been possible for the Central Government to have reserved several million pounds of tea from the Indian Overseas Export Allotment, which was notified annually under Section 13 of Act 24 of 1933, for the purpose of distributing this amount in the shape of hardship allowances to estates which had made out a case for special treatment. There were doubtless other methods also which might have been suitably adopted, but, whatever method might have been followed, the language of Rule 4 of the 1933 Rules does not imply that the Committee, could be authorized by the Central Government to ignore, modify or suspend the preceding rules. The implication, on the other hand, is to the effect that the rules should first be applied and, in cases of special hardship, the result of such application might then be modified by special treatment in favour of particular estates. If it had been intended that hardship allowances should be included in the crop basis of tea estates, there seems to be no reason why such intention should not have been clearly expressed in Rule 1(2) of the rules which were framed under Section 23 of Act 24 of 1933 or, in the alternative, Rule 4 might have been drafted in such way as to express clearly any such intention.

12. To my mind, it is very significant that, when the Tea Control Act was re-enacted in 1938, the language used by the Legislature in Clause (1) of the Schedule to the new Act assumes that any hardship allowance which might have been granted to a particular estate while the Act of 1933 was in operation should be treated as distinct from the crop basis figure for the year in which it had been granted. In this connexion, I pointed out in Sundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange : AIR1939Cal508 that the initial crop basis figure to be determined under Clause (1) of the Schedule will be either the crop basis figure for 1937-38 or the highest crop basis figure fixed for any preceding year after investigation, whichever be higher, and after the higher figure has been ascertained, there must be added to it in either case, that is to say, whether the figure is that of 1937-38 or of some preceding year, any hardship allowance which may have been actually allotted to the tea estate in the particular year in question under the Act of 1933. The Tea Control Acts of 1933 and 1938 are clearly in pari materia and the rule with regard to such Acts has been stated in the following terms in Maxwell's Interpretation of Statutes:

Probably, the rule as to the exposition of one Act by the language of another is satisfactorily and most comprehensively laid down in the broad statement of Lord Mansfield, that : 'where there are different Statutes in pari materia, though made at di0erent times, or even expired and not referring to each other, they shall be taken and construed together, as one system and as explanatory of each other.'

13. On this principle, Clause 1 of the Schedule to the 1938 Act may be taken as explanatory of the legal effect of the statutory rules under the Act of 1933. If these rules are read in the light of Clause 1 of the Schedule, I do not think there is any doubt that the 1933 Rules did not warrant the inclusion of hardship allowances in the crop basis of an estate and it is impossible to suppose that the Legislature in enacting Clause 1 of the Schedule to the Act of 1938 could have intended to provide that a hardship allowance should be added to the crop basis of an estate if such crop basis already included the hardship allowance in question. Such a provision would have placed the estates concerned in an unduly advantageous position with regard to other estates which had received no hardship allowance and the statute would have resulted in a measure of unfairness which it was largely designed to prevent. It is therefore reasonable to hold that the intention of Clause 1 of the Schedule to the 1938 Act in respect of hardship allowances was that such allowances should be added to a figure which did not include these allowances. In support of this part of his argument the learned Advocate-General of Bengal relies upon the provisions of Rule 4(b)(1), Tea Control Rules, 1938, which provides for the deduction from any allowance for young areas, to which the estate may be entitled under Schedule 1 attached to the 1938 rules, of

any special hardship or 'young clearings' allowance included in the crop basis for the year 1937-38, in accordance with the Rules under the Tea Control Act, 1933, in respect of the young clearings concerned.

14. He argues that, as this rule refers to the inclusion of hardship allowances in the crop basis under the 1933 rules, it must be assumed that the framers of the rule were referring to a practice which was legally justified. As already pointed out these allowances had, in fact, been so included. For the reasons which I have already given I entirely agree with the learned Advocate-General of India in thinking that this practice was not warranted by a proper construction of the 1933 rules and there can be no doubt that the draftsman of the 1938 rules was misled by the mistaken practice which had been adopted with regard to this matter. Had the rule referred merely to special hardship allowances in fact included in the crop basis for the year 1937-38 no exception could have been taken to it, but in my view such hardship allowances could not have been so included 'in accordance with the rules under the Tea Control Act, 1933.' Such an assumption, in my opinion, is contrary not only to the provisions of the 1933 rules but also to the language of Clause (1) of the Schedule to the Act of 1938, with which the rules framed under the Act must be consistent. In construing statutes it has been held that a Court of law may reject words of surplusage if it is clear that otherwise the manifest intention of the Legislature will be defeated, and Maxwell in his book on the Interpretation of Statutes has pointed out that

the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied on solid grounds from the context or history of the enactment or from the injustice, inconvenience, or absurdity of the consequences to which it would lead that the language thus treated does not really express the intention and that the amendment probably does.

15. Thus in Fisher v. Val de Travers Asphalte Co. (1876) 1 C.P.D. 259 it was held, in order to give a meaning to a Section of a certain statute, that certain words contained therein should be rejected. In dealing with a similar question in Rex. v. Vasey (1905) 2 K.B. 748 at page 750 Lord Alverstone C.J. made the following observations:

In Maxwell on the Interpretation of Statutes, Edn. 3, p. 319, the principle of construction is laid down in these terms : 'Where the language of a statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence'; and for that proposition several authorities are cited. In Salmon v. Duncombe (1886) 11 A.C. 627, Lord Hobhouse in delivering the judgment of the Privy Council says : 'It is however a very serious matter to hold that when the main object of a statute is clear it shall be reduced to a nullity, by the draftsman's unskilfulness or ignorance of law.

16. His Lordship went on to say that the case with which he was dealing was

a good instance of the principle that the manifest intention of a statute must not be defeated by too literal an adhesion to its precise language,

and that the Section should be so construed as to carry out its undoubted object. The same principle was followed by Darling J. in Rex v. Ettridge (1900) 2 K.B. 24 in which his Lordship held that

where no meaning can be given to certain words of a statute without rejecting some of those used in it, or where the statute would become a nullity were all the words retained, the Court has power to read a Section as though the words which make it meaningless or nullify it were not there.

17. The learned Judge went on to say:

We are of opinion that we may in reading this statute reject words, transpose them oreven imply words, if this be necessary to give effect to the intention and meaning of the Legislature, and this is to be ascertained from a careful consideration of the entire statute.

18. The above-mentioned principles apply with equal if not greater force in the construction of statutory rules and I am therefore of opinion that in construing Rule 4(b)(1) of the 1938 Rules and for the purpose of avoiding repugnancy the words 'in accordance with the rules under the Tea Control Act, 1933' should be omitted. If these words are omitted the preceding words 'included in the crop basis for the year 1937-1938' will be read as meaning included in the crop basis for the year 1937-1938 whether in fact, by reason of special treatment under Rules 4 and 5 of the 1933 Rules, or legally (in the case of 'young clearings' allowances) by reason of Rule 1(2) of those rules. In view of the abovementioned circumstances I am of opinion that the Committee were correct in their calculation of the crop basis figure for the purpose of Clause (1) of the Schedule and I adhere to the view expressed by me in connexion with this matter in Sundarpur Tea Estate v. Indian Tea Licensing Committee Royal Exchange : AIR1939Cal508 . This brings us to the question whether or not the estate is entitled to any allowances for young areas under Clause (2) of the Schedule to Act 8 of 1938. This clause is in the following terms:

Allowances for young areas, i.e. tea planted from 1st January 1926 onwards to be added automatically in accordance with scales that may be fixed for different localities in the prescribed manner.

19. The prescribed scale for the addition of these allowances is to be found in Schedule 1 to the 1938 Rules. This scale appears to have been drawn up for the purpose of indicating approximately the average capacity of production per acre of young areas which had been planted with tea from 1926 onwards in order to ensure that estates with young tea plantations should receive due credit in respect of such plantations as regards their crop basis. The scale in Schedule 1 attached to the 1938 Rules is a generous one, especially in respect of recently planted areas. For instance, a new plantation laid out in 1934 in the Terai would only have been granted an allowance of 200 lbs. per acre as an addition to the crop basis for 1937-1938. According to the new scale such an area would be granted an allowance of 484 lbs. per acre in respect of the crop basis for 1938-1939 according to the scale in Schedule 1. This being the case, it was only fair and reasonable to provide that any allowance which the young areas concerned had already received in calculating the crop basis of the estate under the 1933 Rules should be deducted from the allowances for young areas for which the estate was eligible under the new scale prescribed in the 1938 Rules. It was accordingly provided in Rule 4(b), Tea Control Rules, 1938 that the Committee were authorized to grant additions to crop basis on the scale prescribed in the attached Schedule 1 (allowances for young areas) for the locality concerned after making the deductions specified below : (1) any special hardship or 'young clearings' allowance included in the crop basis for the year 1937-1938...in respect of the young clearings concerned, (2) any yield which the young areas concerned contributed to the production of the estate in that one of the years 1929 to 1932 taken by the estate for the purpose of its crop basis, and (3) any yield which the replanted areas contributed, before their replanting, to the production of the estate in that one of the years 1929 to 1932 taken by the estate for the purposes of its crop basis.

20. In the majority of cases, especially when the new plantations were of fairly recent date, even after the abovementioned deductions had been made, the estates concerned would ordinarily be entitled to substantial allowances in respect of young clearings under Clause (2) of the Schedule to the Act of 1938. In other cases however such as the one with which we are now concerned, if the garden consisted almost entirely of young plantations, which had been laid out in 1926 or 1927 and which had contributed substantially to the yield of the particular year selected by the estate for the purposes of its crop basis, or in respect of which hardship allowances had been granted under the 1933 Rules, there was a possibility of the total amount of deductions exceeding the gross allowance for which the estate might be eligible under Schedule 1 to the 1938 Rules. But these rules read in the light of the Schedule to the Act of 1938 did not authorize the Committee to reduce the crop basis allotted to an estate in 1937-1938 or in any preceding year while the Act of 1933 was in operation. In this view of the case, the Committee quite properly pointed out to producers in a circular No. 13, dated 29th July 1938, that

No matter what the result of the calculations under Rule 4(b) may be, there can be and will be no deduction of the crop basis allotted to an estate for the year 1937-38.

21. In the case with which we are now dealing, the allowance, according to the scale in Schedule 1 annexed to the new Rules, was 159,206 lbs. calculated at the rate of 484 lbs. per acre for 328.94 acres. The deductions were as follows:

(1) Hardship allowance granted forthe year 1937-38 .. .. 42,000 lbs.(2) Allowances for young clearingsunder the Schedule to the 1933Rules .. .. 19,576 lbs.(3) Yield which the young areas con-tributed to the best year crop of1932 .. .. 134,948 lbs.------------Total 196,524 lbs.

22. The deductions therefore exceeded the figure for the total admissible young area allowance by 37,318 lbs. This minus figure was ignored by the Committee in accordance with the principles laid down by them in their circular letter No. 13, dated 29th July 1938, the result being that it was found that the estate was not eligible for any allowances at all in respect of young areas. The learned Advocate-General of Bengal contends in the first place that the Bijaynagar Tea Estate is entitled under Clause (2) of the Schedule to the Act of 1938 to a young area allowance of 159,206 lbs. at the rate of 484 lbs. per acre according to item 13 of Schedule 1 to the 1938 Rules and he argues that Rule 4(b), which allows the abovementioned deductions to be made, is ultra vires of the statute. He maintains that Clause (2) of the Schedule to the Act of 1938 contemplates an addition to the initial figure calculated under Clause (1) and, if an estate contains any young areas, it becomes automatically entitled to an additional allowance in respect of these young areas according to the scale in Schedule 1 to the 1938 Rules without any deductions.

23. I am not prepared to accept the above argument. The words 'to be added automatically' in Clause (2) of Schedule 1 to the Act of 1938 are clearly limited by the following words : 'in accordance with the scales that may be fixed for different localities in the prescribed manner.' In my view, the implication of the latter words is that the Central Government have an unfettered discretion with regard to the fixation of the scales of these allowances and there is no reason that such scales should not be regulated in any manner that the Central Government may think just and equitable, provided, of course, that the scales so fixed do not result in an actual reduction of the initial figure calculated under Clause (1) of the Schedule to the 1933 Act. There is however no inherent illegality in the fixation of a scale which would in fact result in a particular estate being ineligible for any young area allowance at all. In my opinion, Rule 4 (b), Tea Control Rules, 1938, and the scale in Schedule 1 attached thereto must be read together as the prescribed scale according to which young area allowances may be granted. The deductions mentioned in the rule have merely been prescribed for the purpose of ensuring that any estate shall not receive again under Clause (2) any allowances with which it has already been credited under Clause (1) of the Schedule to the Act of 1938. In the case with which we are now dealing the entire estate consists of young areas and, in calculating the crop basis of the estate under Clause (1), it received the full credit for which it was eligible in respect of all the matters mentioned in Rule 4(b). It is therefore quite proper that these deductions should be made and in my view the prescribed deductions are clearly intra vires of the statute. If it be held that Government are empowered to prescribe the deductions specified in Rule 4(b), the learned Advocate-General of Bengal admits that there can be no valid objection to the deduction of 19,576 lbs. on account of the statutory 'young clearings' allowance under the rules framed under Section 23 of Act 24 of 1933. This allowance was included in the crop basis under the 1933 Rules and is clearly covered by Rule 4(b)(1) of the 1938 Rules. It is however strongly argued by the learned Advocate-General of Bengal that, in any event, the Committee were not justified in deducting from the allowance for young areas the hardship allowance of 42,000 lbs. which had been allotted to the Bijaynagar Tea Estate in 1937-38.

24. The first branch of his argument on this point is that, even on the assumption that Rule 4(b)(1) of the 1938 Rules is intra vires of the statute, it only authorizes the committee to deduct special hardship allowances which had been included in the crop basis for the year 1937-38. I have already shown that the rules under the Act of 1983 did not contemplate the inclusion of special hardship allowances in the crop basis and that any such inclusion was wrong. The learned Advocate-General of India admits that the Committee followed a wrong practice in this matter, which appears to have been mistakenly assumed to be correct by the framers of the 1938 Rules. On the assumption therefore that Rule 4(b)(1) is misconceived, the learned Advocate-General of Bengal argues that, as regards special hardship allowances, this rule merely authorizes their deduction in circumstances which cannot legally exist and he therefore contends that the rule is no authority to justify the Committee in making such a deduction at all. In this connexion, I have already observed that for the purpose of avoiding repugnancy the words 'in accordance with the Rules under the Tea Control Act, 1933' should be omitted from Rule 4(b)(1). The clear intention of the rule is that, if an estate has in fact received an allowance by way of special treatment in respect of young plantations the amount of such allowance should be deducted from any allowance for young clearings to which the estate would be entitled under Schedule 1 attached to the 1938 Rules. In the case with which we are now dealing the estate was in fact granted such an allowance amounting to 42,000 lbs. as an 'additional crop basis' for the year 1937-38 and it has received credit for this allowance for the year 1938-39 in accordance with the provisions of Clause (1) to the Schedule to the Act of 1938. It could not have been the intention of the framers of the rules that the estate should receive a double credit on this account and in my opinion this argument of the learned Advocate-General of Bengal must fail. The learned Advocate-General of Bengal further argues that Rule 4(b)(1) of the 1938 Rules only authorizes the Committee to deduct special hardship or 'young clearings' allowances which had actually been granted in the year 1937-38 'in respect of the young clearings concerned.' He con-tends that in construing this expression regard must be had to the definition of 'young clearings' in Rule 1(3) of the Rules under the Act of 1933 which is in the following terms:

Young clearings means

(a) areas planted with tea subsequently to the year 1927 not in replacement of abandoned areas, and

(b) areas planted or replanted subsequently to the year 1927 in replacement of old tea uprooted or abandoned where no crop from the uprooted or abandoned areas was taken into consideration in arriving at the maximun production.

25. The learned Advocate-General of Bengal points out that admittedly the special hardship allowance of 42,000 lbs. which was granted to the estate in 1937-38, was allotted in respect of areas which had been planted with tea in 1926 and 1927 and that these areas were therefore not 'young clearings' within the meaning of the 1933 Rules. According to his contention therefore, in so far as Rule 4(b)(l) of the 1938 Rules relates to deductions of special hardship allowance, it merely means that, if the owner of a tea estate applies for an addition to his crop basis in respect of any young areas and replanted areas, the committee may grant an addition to the crop basis of the estate on the scale prescribed in Schedule 1 to the Rules after deducting from the resultant figure any special hardship allowance which may have been granted under the 1933 Rules in respect of any of those young areas or replanted areas which were young clearings within the meaning of the 1933 Rules. The learned Advocate-General of India, on the other hand, argues that the expression 'young clearings' is used in the 1938 Rules in a wider significance than that in which it was used in the 1933 Rules and he contends that the use of the words 'in respect of the young clearings concerned' indicates that the Committee were authorized to make the deductions mentioned in the rule in respect of any of the young areas or replanted areas mentioned in the application submitted by the estate, provided that the allowances sought to be deducted had actually been made by the Committee in respect of any of those areas in 1937-38.

26. It is therefore necessary to decide whether the expression 'young clearings' has been used in the same sense in the 1938 Rules as that in which it was used in the rules under Section 23 of the Act of 1933 and, if not, what meaning must be attached to this expression in the rules under the new Act. The Tea Control Act of 1933 appears largely to have been based on certain proposals contained in a referendum issued by the Indian Tea Association and the South Indian Association. Pending the passing of the Act effect was given to the restriction scheme by a notification, dated 20th May 1933, which was issued under the provisions of the Sea Customs Act, 1878. In para. 6 of the abovementioned notification it is stated that:

In accordance with the agreement reached by the majority of tea growers in India on the referendum issued by the Indian Tea Association and the South Indian Association the yearly quota for each estate shall be based on the accepted maximum production of that estate in any one of the four years 1929, 1930, 1931 and 1932 allowance being made for young tea. This maximum is termed the crop basis. The yearly quota shall bear the same ratio to the crop basis of the estate as the total overseas export allotment bears to the total Indian crop basis. Export rights created by the allocation of a quota shall be transferable.

27. It will therefore be seen that one of the main terms of the agreement relating to the restriction scheme was that in calculating the crop basis of tea estates suitable allowances should be made for young tea. The intention was that in working the restriction scheme the tea estates should be assured of a reasonable return for the capital which had been invested by them in respect both of old and new plantations of tea. As regards old areas, in which the plantations had already attained their normal standard of productivity, the obvious method to adopt was to calculate the export quota of any estate according to an accepted proportion of the maximum production of the planted area in a good average year. As regards young areas, which had not reached their normal standard of productivity when the restriction scheme was brought into operation, it was reasonable that they should be given export quotas at the accepted proportion on crops which the new plantations might ordinarily be expected to produce as soon as the young plants reached the crop-bearing age. The matter was one of some difficulty and required careful adjustment and calculation. It was probably on this account that it was decided in Section 14 (1) of Act 24 of 1933 that the exact method to be followed in determining the export quota of a tea estate should be prescribed by rules. In the rules which were published under Section 23 of the Act of 1933 allowances were made for young tea by providing for the addition to the crop basis of an estate of allowances for young clearings on the scale set forth in Schedule 1 and the expression 'young clearings', was defined.

28. When the Act of 1938 was passed, it was decided for reasons which it is not necessary to discuss that tea which had been planted from 1st January 1926 should be treated as young tea and provision was accordingly made in Clause (2) of the Schedule to the Act of 1938 for allowances for the young areas in which such tea had been planted. These young areas were clearly intended to include the young clearings for which provision had been made in the 1933 Rules with the addition of areas which had been planted or replanted between 1st January 1926 and 31st December 1927. In other words, the intention was that allowances should be granted in respect of tea planted in young clearings, not merely in the restricted sense in which that expression is used in the 1933 Rules but in a wider sense so as to include clearings which had been planted or replanted from 1st January 1926 onwards. lb follows therefore that the expression 'young areas' in Clause (2) of the Schedule to the Act of 1938 must be taken to mean young clearings planted or replanted with tea on or after 1st January 1926. In my opinion, it was in this sense that the expression 'young clearings' was understood and used by the framers of the 1938 Rules. Having regard to the terms of Clause (2) of the Schedule the framers of the 1938 Rules apparently did not think it necessary to define the expression 'young clearings' but the expression 'replanted areas' was defined with special reference to certain amendments in Chapter III of the Act. Had any definition of 'young clearings' been thought necessary it might possibly have been to the effect that 'young clearings' means 'young areas planted with tea subsequently to the year 1925 including replanted areas as defined in Rule 2(2).' The absence of such a definition, however, does not, in my opinion, render the meaning of the rules unduly obscure.

29. In this connexion, it is significant that in the Schedules which form part of the 1938 Rules the expressions 'young areas' and 'young clearings' are used in the same sense. For instance, Schedule 1 is headed 'allowances for young areas' while the subheadings are 'allowance, for young clearings in lbs. per acre.' Again. Schedule 2 is headed 'contributions by young areas to the yield in the years 1929 to 1932,' but there are notes with regard to some of the young areas concerned to the effect that 'these young clearings did not contribute to the yield in the years 1929 to 1932.' It may also be noted that the use of inverted commas with reference to the expression 'young clearings' in the first part of Rule 4(b)(1) indicates that, in that part of the rule, this expression was used with special reference to the 1,935 Rules. The absence of the inverted commas in reference to this expression in the latter part of the rule shows that the expression was then being used in its ordinary significance as meaning a young area in which tea had been planted. Further, having regard to the context, the expression 'in respect of the young clearings concerned' clearly relates to 'the young areas and replanted areas' mentioned in Rule 4(a) in respect of which the owners of tea estates were permitted to apply for an addition to their crop basis. I am therefore of opinion that the expression 'young clearings' in the latter part of Rule 4(b)(1) has been used in the same sense as the expression 'young areas' has been used in Clause (2) of the Schedule to Act 8 of 1938. It therefore follows that, as the Bijaynagar Tea Estate had been granted & hardship allowance in respect of the young areas comprised in the estate, which had been planted in 1926-27, and the estate has been duly credited with this allowance under Clause (1) of the Schedule to the 1938 Act, the committee were authorized to deduct the allowance in question under the provisions of Rule 4(b)(1) of the 1938 Rules. The only remaining question which requires consideration is whether the proper deduction was made by the Committee under Rule 4(b)(2) of the 1938 Rules. In this connexion, the learned Advocate-General of Bengal contends that, on the assumption that the rules are intra vires of the statute, the maximum deduction that the committee should have made on this account was 131,192 lbs. in accordance with the scale prescribed by item 13 of Schedule 2 attached to the 1938 Rules. The language of Rule 4(b)(2) indicates however that the committee are not authorized to have recourse to the provisions of Schedule 2 in calculating the deduction to be made under this part of the rules if satisfactory evidence is forthcoming of the yield which a young area contributed to the production of a tea estate in the year taken by the estate for the purposes of its crop basis. In the case with which we are now dealing it is admitted in several documents submitted by the Bijaynagar Tea Company to the Indian Tea Licensing Committee that their production in 1932 was 134,948 lbs. It is also admitted that the whole of the estate consists of young areas and it therefore follows that 134,948 lbs. must be taken to be the figure which the committee were authorized to deduct under the provisions of Rule 4(b)(2) of the 1938 Rules.

30. In view therefore of the considerations mentioned above, the issues which have been framed in this case must be answered as follows : Issue 1 : 196,524 lbs. including 154,524 lbs. which was the crop basis of the Bijaynagar Tea Estate for 1937-38, and 42,000 lbs. which was the hardship allowance allotted to the estate in that year. Issue 1 (a) : No. Issue 2 : The estate is entitled to no allowance in respect of young areas under Clause (2) of the Schedule. Issue 2(a)(1) : No. Issue 2(a)(ii) : Yes. Issue 2(a)(iii) : Yes. Issue No. 3 : In Rule 4(b)(1) the words 'in accordance with the rules under the Tea Control Act, 1933,' should be omitted. Subject to this omission Rule 4(b) is intra vires. Issue 3(a) : This does not arise. Issue 3 (b): No. Issue 4 : Yes. Issue 5 : Yes. Issue 6 : The appellant is entitled to no relief.

31. This appeal must therefore be dismissed with costs which will be taxed according to the scale followed in connexion with suits on the original side of this Court (Scale No. 2). In view of the decision in this case appeals under the Tea Control Act Nos. (F.M.As.) 20 and 25 of 1939 are also dismissed with costs which will be taxed on Scale No. 2 on the original side of this Court. Decrees based upon this judgment should be drawn up forthwith to include the costs in the appeals. For the purpose of executing these decrees such steps as may be necessary will be taken on the original side of this Court.


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