DUTTA AND ASSOCIATES Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application is at the instance of the petitioners M/s. Dutta & Associates, a partnership firm and one of the partners of the said firm Shri Gour Pada Dutta challenging the legality and validity of the notice issued under Section 106 of the Transfer of Property Act determining the lease in favour of the respondents Nos. 6 & 7 Shri Om Prakash Agarwall and Shri Ajit Kr. Agarwall, subsequently transposed as petitioners, granted by the Government in respect of the Tea Garden named Rungneet Tea Estate (Darjeeling) as well as the notice intimating that possession of the said tea garden has been taken over by the Collector, Darjeeling with effect from 15th of April, 1981 on the failure of the lessee to execute long term lease on payment of the Government dues by 14th April, 1981 as required in the said notice under Section 106 of the T. P. Act. The challenge was thrown on the ground that the notice of termination issued under Section 106 of the T. P. Act was not in accordance with law and as such it did not terminate the lease in favour of the petitioners' vendors and/or assignors, the respondent Nos, 6 and 7 (the transposed petitioners) and the notice of the Collector taking possession of the said tea esiate forcibly by executive fiat was wholly illegal and unwarranted.

(2.) The salient facts of the case as appeared in the averments made in the writ application are as follows. The petitioner No. 1 which is a registered partnership firm having its registered office at Dutta Bhawan, P. O. Siliguri, District Darjeeling, entered into- an agreement for sale of Rungneet Tea Estate situated within the District of Darjeeling with the lessors of the said Estate Shri Om Prakash Agarwall and Shri Ajit Kr. Agarwall, the respondents Nos. 6 & 7 for purchase of the said Tea Estate. The said agreement was executed on 29th of March, 1977. On the basis of the said agreement the petitioner firm became entitled to carry on business of the said Tea Estate and to run the management of the said Tea Garden on their own account and they would be liable for all statutory and non-statutory liabilities and costs and expenses etc. relating to and/or arising out of or concerning the said Tea Estate or the business thereof. The petitioner firm was given delivery of possession of the said Tea Estate by the erstwhile owners, the respondents Nos. 6 & 7 (transposed petitioners), since 1977 and since then the petitioner firm was seized and possessed of the said Tea Estate and have been carrying on the business of growing and manufacturing of tea therefrom till the Collector, Darjeeling took possession of the same in April, 1981. It has been stated that the petitioner firm duly paid the consideration money to the lessors, res pondents Nos. 6 & 7, for purchase of their leasehold interest and they have also in vested a considerable sum of money for the improvement of the said Tea Estate by purchase of manure and pesticides and also for purchase of new plantation in the said Tea Estate. It has also been stated that since 1977 all the plants, machineries, stocks and stores, buildings, furniture, fixtures and fittings of the Tea Estate belonged to the petitioner firm and the petitioner firm used and enjoyed the said Tea Estate without any hindrance or objection, from any quarter. It is stated that the petitioner firm, on the basis of the said agreement, applied for licence for manufacturing of tea in the said Tea Garden to the Superintendent, Central Excise, Darjeeling, to the knowledge and consent of the Government and licence was issued in their favour on 6th April 1977 authorising them to manufacture tea for a period of 3 years ending on 31st December, 1979 in the said Rungneet Tea Estate. This licence has been annexed as annexure 'A' to the petition. It also appears that the State Government by Order No. 6774-L. Ref. D/- 30-5-62 declared under Section 6 (3) of the West Bengal Estates Acquisition Act that 405.78 acres of land was retainable by the tea garden for its purpose. The rent under Sub-section (3) of S, 42 of the West Bengal Estates Acquisition Act for the aforesaid area declared retainable was determined on 18-9-74 at Rs. 3635.74 annually; road and P. W. cesses were assessed at Rs. 109.08 each and education cess at Rs, 345.42 paise. It also appears that on 28th of Mar., 1977, the Additional Deputy Commissioner, Darjeeling, respondent No. 3, intimated Shri Om Prakash Agarwall, the respondent No, 6, that the Government had no objection to their handing over the Rungneet Tea Estate by lease or any other form which they might deem proper to M/s, Dutta & Associates (Petitioners), Tea planters and traders, Silli-guri. It has also been stated therein that formal sale agreement would not be entered into by the respondents Nos. 6 & 1 with the petitioners till permission for sale had been taken by them from the Additional Deputy Commissioner, Darjee-ling. This permission, it has been stated, will only be given if arrears of land re venue and cesses are paid by them. A copy of this letter was sent to the Superintendent, Central Excise, Darjee ling with a note that the Government had no objection to M/s. Dutta and Associates taking over the management of the gar den. This has been annexed as annexure 'A" to the affidavit-in-reply on behalf of the petitioner on 24th June, 1981. On 8th Sept., 1977, the petitioner sent a letter to the Deputy Secretary, Land Utilisation and Land Revenue, Government of West Bengal praying for allowing the petitioner to pay the arrears of land revenue on quarterly instalments basis and also for giving necessary permission for transfer of the said Tea Estate in favour of the petitioners by the lessors, the respondents Nos. 6 & 7. This has been annexed as annexure B to the affidavit in reply sworn on behalf of the petitioner. The respondent No. 6 also on 26th of Nov., 1977, addressed a letter to the Additional Deputy Commissioner, Darjeeling, stating that he and his brother, the respondent No. 7 who are the owners of Rungneet Tea Estate have entered into an agreement on 9th of Mar., 1977 for sale of the said Tea Estate to M/s. Dutta and Associates, the petitioners, and requested him to settle the matter of payment of arrear and current land revenue of the said Tea Estate in instalments with the representatives of M/s. Dutta & Associates and also to accept the payment of such land rent for which they did not have any objection since it was to be borne by them. A copy of this letter has been annexed as an-nexure B to the petition. On 26th December, 1977 the petitioner sent another tetter to the Additional Deputy Commissioner, Darjeeling, making a similar request for permitting them to pay on quarterly instalments of one year all arrears of revenue. This letter is also annexed as annexure B to the Affidavit-in-reply. The Additional Deputy Commissioner, Darjeeling, sent a letter on 10th Feb., 1978 to the petitioner No. 1, stating that the lease could not be transferred in full or in part of the Tea Garden without the formal sanction of the Collector as per lease condition in Clause No. 13 in reply to the letter of the petitioner dt. 24th June, 1978, requesting the Additional Deputy Commissioner, Darjeeling, to intimate whether any prior permission from authority was necessary for transfer of the Tea Garden. On 29th of Mar., 1978, the petitioner sent a letter to the Additional Deputy Commissioner, Darjeeling intimating that they be permitted to pay the arrears of land revenue by instalments in the manner already applied for by them. This has been annexed as annexure B to the affidavit-in-reply. On 20th of June, 1979, a letter was sent by the Additional Deputy Commissioner, Darjeeling, to the Manager, Rungneet Tea Estate, Darjeeling intimating that in spite of repeated reminders they had not executed the long term lease of 30 years on payment of requisite number of instalments of rents and cess. It has been further stated therein that if they fail to tender payment of Government dues the following consequences would follow:

(3.) The petitioner sent a reply to the said letter on 20th of Aug., 1979 stating inter alia that as the rent payable by them in respect of the said Tea Garden had been finally determined and the said determination had been communicated to them, they could not take any steps in that respect. It was also stated therein that they be permitted to pay arrear rents by instalments and as such they requested the Additional Deputy Collector, Touzi department, Darjeeling to intimate them about the total amount of Govt. dues for the said Tea Estate in order to enable them to make payment of the said Tea Estate at an early date. This letter was annexed as annexure D to the petition. No reply was given to the said letter by the respondents and on 7th Oct., 1980, a notice has been issued on the proprietor, Rungneet Tea Estate, Darjeeling, Dutta and Associates, Tea Planters and Traders intimating that the lease of the Tea Garden shall stand determined on the expiry of the current year of tenancy namely on the expiry of 14th of April, 198) and they are requested to make over peaceful possession of the said Tea Garden to the Junior Land Reforms Officer, Special Land Reforms Circle or Executive Magistrate immediately on the expiry of the 14th April, 1980 failing which they will be deemed as trespassers and will also be liable to pay mesne profits till they are evicted in due course of law besides arrears of rent. On 1st of Nov., 1980, the Manager of the petitioner firm sent a letter to the Collector, Darjeeling requesting him to arrange for renewal of the lease in their favour of Rungneet Tea Estate having Touzi No. 32F and to advise them accordingly. On 18th of April, 1981, the Collector of Darjeeling by a notice addressed to the proprietor/Manager, Rungneet Tea Estate, P. O. Darjeeling has intimated that he does hereby take over possession of the Tea Garden known as Rungneet Tea Estate with effect from 10th April, 1981 as they failed to execute long term lease on payment of the Govt. dues by 14th April, 1981 as required in the notice served upon them under Section 106 of the T. P. Act.