S.N. Bhattacharjee, J.
1. The above appeals arise out of a common Judgment passed by a learned single Judge of this court dated 24.12.98 whereby the writ petition being marked as C.R. No. 18331 (W) of 1984 and C.R. No. 18452 (W) of 1984 were disposed of with the following observations :--
'If the said tea estates are being run presently by the Special Officer, even if through some agency. If there be any, the Special Officer should handover possession of the same to the lessee in terms of this order. In other words, whoever be In possession of the above two tea eatates, should hand over the possession of the same to the lessee within the stipulated period as mentioned above.'
2. The admitted facts of the case, briefly stated, are that on September 18, 1976, Chargola Tea Company Private Limited as the owner of Chargola Estate granted a lease with effect from August 1, 1975 in favour of ShriGhanashyamlal Agarwal, the respondent herein in MAT No. 880/99 by a registered deed of lease for a period of five years on a rental of Rs. 4,000/- per month with an option to renew the same for another term of five years incorporating a stipulation that the lease cannot be determined by the lessor without payment of the dues of the lessee which he had already advanced to the lessor. Similarly, on the same date M/s. Slnglachara Tea Company Private Limited as the owner of Slnglachara Tea Estate executed a deed of lease in favour of the writ petitioner Ghanashyamlal Agarwal in similar terms.
3. The Central Government by a notification dated 7th December, 1978 authorised Tea Trading Corporation of India Limited (hereinafter referred to as TTCI) to take over the management of the whole of Chargola Tea Estate for a period of 5 years subject to the terms contained therein. But actually both the tea estates were taken over by the officials of TTCI from Ghanashyamlal Agarwal. Ghanashyamlal Agarwal filed two writ petitions challenging the notification of the Central Government for taking over both the tea estates and the writ application were marked as C.R. 9632 (W)/78 and C.R. No. 5853(W)/79 under Article 226 of the Constitution of India. Both the petitions were dismissed by order of a single Judge dated 24.12.1998. In the meantime the period of 5 years under the Notification of Central Government taking over the management expired. Slnglachara Tea Co. filed a writ petition marked as C.R. No. 18331 (W) of 1984 claiming their right to get back the tea estates as the owners thereof. In the writ petition No. 18331(W) of 1984 the lessee Ghanashymalal Agarwal, Chargola Tea Co. (Pvt.) Ltd. and Rangajaun Tea & Plantation Industries Private Limited by filing separate petitions claimed possession of the tea estates after removal of Special Officer (vide page 355-425. 426-487, Chargola 940-1017 of the paper book). Ghanashyamlal Agarwal also filed a writ petition marked as petition No. 18452(W) of 1984 before the writ court praying for direction upon TTCI to make over the possession to tea estate In his favour. Rangajaun Tea & Plantation Industries Private Limited intervened in the writ petition No. 18331(W) of 1984 as another claimant for possession of the Estate by virtue of an irrevocable power of Attorney executed on 12.7.84 for a period of 15 years to run, manage and control Slnglachara Tea Estate. The TTCI (respondent in writ petition No. 18331(W) of 1984) having expressed its unwillingness of run the management of tea estates, a Special Officer was appointed by the writ court to run the management of the Tea Estates till the disposal of writ petition.
4. The learned trial Judge rejecting the contentions of the tea companies allowed the prayer of the writ petitioner/lessee. Ghanashyamlal Agarwal, directing the TTCI and the Special Officer to make over the possession of the tea estates in favour of the lessee by the Impugned order dated 24.12.98.
5. Being aggrieved by the aforesaid order of the learned trial Judge both the tea companies as also Rangajaun Tea & Plantation Industries Limited have come up with the instant appeals under our consideration.
6. The only question for determination is whether the appellants herein or the respondent No.1 Ghanashyamlal Agarwal being the lessee would beentitled to get back the possession of the two estates from the Special Officer appointed by this court in course of hearing of this appeal pursuant to the prayer of release of the erstwhile Special Officer, Sri Chinmoy Samaddar appointed by the trial court.
7. It cannot be disputed that the TTCI took over the possession from the lessee, Ghanashyamlal Agarwal (respondent No. 1) In MAT 880 of 1999 during the period when lease was subsisting. During the pendency of the writ petitions filed by Ghanashyamlal Agarwal claiming possession of the tea estates the TTCI entered appearance as respondent and expressed unwillingness to run the management of tea estates and a Special Officer was appointed by the writ court. It is asserted by respondent-lessee, Ghanashyamlal Agarwal, that he applied for renewal of the lease before expiry of 5 years and that even after expiration of another period of 5 years, his lease cannot be determind in view of the terms of the lease deed till his dues are fully paid by the lessor.
8. It has been argued by the learned counsel Mr. Bachawat appearing for the respondent Ghanashyamlal Agarwal in MAT No. 880 of 1999 that the claim of Rangajaun Tea & Plantation Industries Private Limited for getting possession of the tea estates can be summarily dismissed In view of the fact that Rangajaun Tea Company Limited forcibly took possession of Slnglachara Tea Estate on March 30, 1990 without the leave of the court, when Special Officer was in possession. On April 16, 1990 Rangajaun applied in C.R. No. 18331(W) of 1984 for direction that the Special Officer be discharged and for further direction to hand over possession of Slnglachara Tea Estate in favour of Rangajaun although it appears from certificate dated March 30, 1990 that Rangajaun had already taken possession of the said two tea estates on March, 29, 1990 by virtue of purported power of attorney executed by Slnglachara Tea Company Private Limited and Chargola Tea Company Private Limited (petition dated 16.4.1990 page 16/22 of the paper book). Pursuant to the petition of the respondent Ghanashyamlal Agarwal dated June 24, 1990 for committal of Rangajaun, its Director as also the Directors of Chargola and Slnglachara Tea Company Private Limited for contempt, the trial court directed Rangajaun Tea Company to hand over the charge of the tea estates Immediately to the Special Officer who was again Directed to run the tea estates through Rangajaun. It is further argued by the learned counsel appearing for the respondent Ghanashyamlal Agarwal that the factual aspects of the claim registered by Rangajaun have been seriously disputed by Sunlta Agarwal, widow of Ravlndra Kumar Agarwal who was a Director of the said two companies, (vide petition of Sunlta Agarwal dated 24.4.92 page 571 of the paper book) and that such disputes have raised only to complicate the Issues before the writ court although such disputes are not subject matter of the consideration in the writ proceeding. The factual aspects in dispute have to be established before a civil court of competent Jurisdiction. The further argument of the learned counsel for the respondent Ghanashyamlal Agarwal Is that leases are for certain terms i.e. for 5 years with an option for renewal for further 5 years and thereafter Ghanashyamlal Agarwal would be entitled to be in possession till his dues are repaid by the lessor which means that Ghanashyamlal would be entitled to be in possession from yearto year or from month to month by holding over under section 116 of the Transfer of Property Act, 1882 till determination of tenancy in accordance with law. According to him the determination of lease by efflux of 5 years or 10 years would not ipso facto entitled the three tea companies or any other person to the possession of the said tea estates. Reliance was placed before the Division Bench of the Calcutta High Court In F.W. Higgins v. Nobin Chandra Sen, 11. Calcutta Weekly Notes Page 809 wherein a lease for 5 years with a stipulation that the lessee would be entitled to hold and possess the premises, even after expiration of the term and so long as he desired to do so was held to be a valid lease for life or until surrender.
9. It was next argued on behalf of the respondent Ghanashyamlal Agarwal that the owner as defined In section 3K of the Tea Act, 1953 includes with reference to a tea estate or garden or sub-division thereof, the possession of which has been transferred by lease, mortgage or otherwise the transferred so long as his right of possession subsists. The right to possession of Ghanashyamlal Agarwal subsists not only during the period of five years of the lease, but under Clause II(e) of the lease dated 18.9.76 he is also entitled to be in possession thereof for recoupment of his dues as there was a large sum due and payable by the company to him.
10. The learned counsel on behalf of the appellants have uniformly argued that section 3 of the Tea Act which is the definition of section specifically says; 'in this Act, unless the context otherwise requires. 'The order published in the Calcutta Gazette having specifically described 'the owner' in the order itself, it is a case of the 'context otherwise requiring'. in other words, where the Order Is describing the 'owner' as the Company, the definition of 'owner' in section 3(K) is specifically excluded, and Ghanashyamlal Agarwal cannot describe himself as the 'owner' as defined in section 3(K) of the said Act. This argument on behalf of the company Is further strengthened by the fact that the letter dated 8th December, 1978 was addressed by TTCI to the company as the owner. By the said letter. TTCI evinced its intention to take owner possession In terms of the said order published in the Calcutta Gazette on 7th December, 1978. This is a clear case where the context otherwise requires, and, therefore, section 3(K) has no application so as to vest any right in Ghanashyamlal Agarwal as the owner of the said tea estate.
11. It has been contended that there has been Incorporation of the provisions of the Industries (Development & Regulation) Act, 1951 In the Tea Act, 1953 by virtue of section 16D(3) read with section 16A(2). Section 16A is the definition section for the provisions under Chapter 3 and section 3F of the said Act defines owner, in relation to an Industrial undertaking, as the person who or the authority which has the ultimate control over the affairs of the undertaking and where the said affairs are entrusted to a Manager, Managing Director or Managing Agent, such Manager, Managing Director or Managing Agent, shall be deemed to be the owner of the undertaking. According to the learned counsels, the appellants herein had the ultimate control over the tea Industries and as such should be deemed to be the owner and not the respondent lessee, Ghanashyamlal Agarwal.
12. It has been argued on behalf of the appellants that the respondent la a mere lessee under the indenture dated 18.9.76 for a period of five years with effect from August 2, 1975. The above certain period of five years of the lease cannot be extended under clause II(e), otherwise the period of the lease will become uncertain, and the lease will become void. Reliance has been placed on the decision of the Allahabad High Court In the case of Vikram Cotton Mills Ltd. v. IFCl reported In 38 Company Cases 458. In that case, clause 4F of the lease stated that on or before the expiry of the said term, the lessee may obtain a renewed lease for a further period of ten years in case something is still due under the mortgage. Clause ID provided that in the event of its taking more than 10 years to liquidate the amount due to the Corporation, the term would be automatically extended by such period as might be necessary to pay the entire amount due to the Corporation. It was held that the period of the lease was for 10 years certain, and the provision for automatic extension of the lease beyond 10 years in clause ID had to be overlooked. It that case the court held (at pages 469-471) that if effect had to be given to clause ID, it would not have been possible at the time of creation of the lease or even subsequently to determine exactly what would be the requlslt period for liquidating the dues of the Corporation.
13. Thus, the lease would have been Invalid, but for the fact that a specific period of 10 years was provided for therein. Relying upon Halsbury's laws of England, the Allahabad High Court held that If to a certain term, the lease purports to add a term which is uncertain, it is valid only to the certain term.
14. Reliance has also been placed on the decision in Dattatreva v. Anand Chintaman Datar, reported in : [1975]2SCR224 wherein apex court held as follows :--
'A charge holder like a simple mortgagee has a right to bring the property charged to sell or can enforce his charge against any portion of the property charged. Where a charge holder is given possession of the property as a charge holder, he can remain in possession of it until the amount due to him is satisfied: but if the possession is not attributable to the charge, he cannot insist on retaining possession until his dues are paid.'
15. In the instant case, as contended, the possession of Ghanashyamlal Agarwal was attributable to his character as a lessee. Upon termination of the lease on 1st August, 1980 he cannot insist on retaining possession until his dues are paid.
16. It has, therefore, been argued that lease was determined by efflux of time after expiry of five years as such lease cannot be extended beyond five years for its being tainted with uncertainty in respect of duration of the lease.
17. It is, therefore, important to decide as to whether the lease is still subsisting up to the expiry of so many years since the date of creation of the lease. In arriving at such decision it is necessary to consider the effect of taking over of management of tea estates by TTCI for a period of six years by virtue of a notification Issued by the Central Government authorisingTTCI to take over possession of tea estates and also whether the lease has been determined by efflux of time or by the acts and conducts of parties. It has been claimed by the lessee that he applied for renewal of the lease but that claim has been seriously disputed. Whether the lessee has defaulted in payment of rent or has failed to run the management of the tea estates or whether there was a breach of the terms of contract or whether all dues have been paid by the lessor to the lessee can hardly be determined without adduction of evidence before a civil court of competent Jurisdiction. The writ Jurisdiction cannot be invoked for a declaration that the lease has been determined by the act of the parties or by efflux of time or by Interpretation of the term of the deed or by giving to a decision that the stipulation as to the payment of dues before determination of lease by the lessor to the lessee would vitiate the lease due to uncertainties and vagueness as to duration of the lease.
18. The Rangajaun Tea & Plantation Industries Private Ltd., is another claimant for the tea estates on the basis of power of attorney executed by the lessors before us as also on the strength of the purchase of majority of shares which claim has also been disputed by the widow of the Directors of the two tea estates. The claimant Rangajaun Tea & Plantation Industries Private Ltd., in our opinion, need not be gone into Inasmuch as even its claim were true, it would step into the shoes of the lessors through whom it claims for delivery of possession in its favour.
19. It should be noted that writ petition No. 18331 (W)/84 filed by Chargola Tea Company Private Ltd. and writ petition No. 18452(W) of 1984 were filed against TTCI for delivery of possession. As soon as TTCI expressed its unwillingness to run the management of the tea estates the subject matter of the writ petition at once got converted into the private dispute between the lessors and the lessee and the writ court lost Its Jurisdiction to decide the disputes between two private parties and the matter was referrable to civil court. On all these grounds I am of the opinion that this court is unable to given the reliefs to either of the parties in terms of their prayers and the disputes of the parties merit adjudication by the civil court, I am. therefore, of the opinion that the learned trial Judge fell in error in passing the Impugned order which is liable to be set aside. Parties would be at liberty to seek relief before the civil court of competent Jurisdiction which should dispose of such disputes as early as possible. The learned Receiver appointed by this court will continue to. run the management of the tea estates in terms of the order passed by this court and submit monthly statement of accounts before the civil court till any appropriate order is passed in this regard by the said court.
20. We have considered the application dated 30.3.99 filed by Shrl Chlnmoy Samaddar who worked as Special Officer appointed by the trial court for all practical purposes from July 1985 when by an order dated 30.8.85 Hon'ble Mr. Justice Umesh Chandra Banerjee (as His Lordship then was) fixed up the remuneration of the Special Officer by observing as follows :
'Considering the facts and considering the nature of duty of the special officer 1ft x 70 G.M.s. per months commencing from the monih of July 1985. The remuneration already paid to the special officer to the extentof 1600 M. is to be treated as his remuneration for his visit and other works incidental thereto. The Special Officer will be entitled to the remuneration of a further two months as of date.'
The trial court further observed,
'On the last occasion it was agreed between the parties that whatever costs would be required for maintenance and reservation of the Tea Garden in question, the same would be borne by Mr. Aninda Mitra's client and Mr. Sanjoy Bhattacharjee's client in equal proportion.'
21. We have persued the reports and minutes submitted by the Special Officer dated 31.8.85, 19.11.85, 23.2.87, 18.12.89, 23.4.91, 30.3.99 the following facts transpired from the reports :
(1) Shri Chinmoy Samaddar tendered his resignation on 23.9.85 i.e. one month after his appointment on account of financial difficulties in running the management and being apprehensive of criminal prosecution under Assam Provident Fund Act and the scheme thereunder.
(2) He received disquieting reports from gardens about labour unrest, non-payment of wages, absence of cultivation, immatured death of labourers but he could not take any action, (vide his report dated 23.2.87)
(3) He received Rs. 25,000/- from the lessee Ghanashyamlal Agarwal and opened a bank account of Rs. 20,000/-. He further received a sum of Rs. 75,000/- from Som Prakash Slnghanla, the managing Director of Rangajaun Tea and Plantation Industries Private Limited, who was authorised and empowered by him under an agreement to purchase green leaves of the two tea estates @ Rs. 2/- per kg. He also received a sum of Rs. 2,16,000/- from Tea Trading Corporation of India. All the cheques were deposited by him with the manager for crediting with the bank account.
(4) He got report that the labourers of the two tea estates themselves sold green leaves and distributed amongst themselves a sum of Rs. 42,00,000/-.
(5) Rangajaun Tea & Planatlon Industries paid up his outstanding remuneration upto January 1987 by making payment of Rs. 24,458/- in A/c payee cheque dated 19.4.91 (vide his report dated 19.4.91).
(6) Ajit Kumar Chakraborty who was manager appointed by Chinmoy Samaddar also tendered his resignation on 15.1.86.
(7) After April 1, 1986 the Special Officer did not receive any Bank statements of accounts, (vide report dated 18.12.89 at page 1330 of the paper book)
22. When he got his remuneration from the Managing Director of Rangajaun Tea & Plantation Industries Pvt. Ltd. upto January 1987 we do not know what prevented him from claiming his remuneration upto January 1991 from Rangajaun Tea & Plantation Industries which was obliged to make such payment of his remuneration for being authorised to purchasegreen leaves of the two tea estates @ Rs.2/- per Kg. There is no material before us to show that quantity of leaves was sold to Rangajaun Tea & Plantation Industries per year and what was the sale proceeds therefrom. Be that as it may, it is clear that this is a deviation from the arrangements for payment of his remuneration made by the court by its order dated 30.8.85 and he himself made such deviation on his own Initiative. Although there is to report of his management after 1987 supported by papers he has claimed his remuneration upto December, 1998 @ Rs. 1190/- per month as if he was a monthly salaried-officer appointed by the High Court entitled to get his remuneration Irrespective of any work done by him as Special Officer. The order dated 30.8.85 clearly shows that his remuneration was fixed considering the nature of the work to be performed by him. After 19.8.87 he only visited the tea estates pursuant to the order passed by the trial court on 21.3.91 In C.O. No. 18331(W) of 1984.
23. When the lessors and the lessee are kept out of possession of the tea estates for about two decades, when the management was run by the Special Officer through the manager appointed by him and when the Managing Director of Rangajaun Tea & Plantation Industries Pvt. Ltd. getting the usufruct of the two big tea estates cleared his outstanding remuneration bill on demand upto January 1987 in the year 1991 and when papers are too Inadequate to give an Idea of the annual Income and expenditure of the tea estates it is difficult to direct the lessors and the lessee to make payment of his remuneration particularly when he himself did not receive any Bank statement since 1986. We are, therefore, unable to allow his claim for remuneration stated in the petition dated 30.3.99 In view of the facts and circumstances discussed above. Accordingly the petition is dismissed.
The appeals are, therefore, disposed of accordingly without any order as to costs. The Judgment and Order appealed against is hereby set aside. Xerox certified copies of this Judgment be delivered within 15 days from the date of application by the parties.
S.B. Sinha. A.C.J.
24. I agree.
25. Appeal disposed of